08/22/2026
Congratulations to Brendan Willoughby who wrapped up a long hard fight yesterday successfully. Long story short. We had a judge that was treating our clients differently because we fight our cases and file motions. For years, the district attorney’s office has attempted to forfeit weapons if they’re found in the vehicle when someone has a DUI. Does not matter if the gun is in the glove compartment or where. There’s no legal authority to forfeit a weapon in a DUI case. The district attorney‘s office does it by negotiation, thus, if you want this plea offer, you have to give up your right to the weapon. We would always in the past if it was not a trial case, blind plea to the judge. Never in 28 years of practicing law have we had a judge take the weapon because there’s no legal authority.
This one particular judge, though, did forfeit the weapon. At that point we’ve had enough. We followed the proper motions to strike the illegal portion of the sentence or withdraw the plea. Along with a motion to recuse the judge from all of our cases in front of her as she was showing a pattern of bias. This upset some other defense attorneys.
After going through the motions and requirements, we ended up filing the motion to recuse in the Court of Criminal Appeals. This particular Judge was on vacation. When she came back from vacation, she decided to “retire” before it was heard.
Flash forward. Thursday, Brendan had our motion to vacate illegal portion of the sentence in front of the new Judge. The judge vacated, the illegal portion forfeiting the weapon and made it very clear….there is no legal authority for this to happen.
Keep in mind that in addition to no legal authority, it’s unconstitutional. It is a taking without due process, which is protected under the fifth amendment. This is why when there is money or guns found in a drug case, the state must file a civil forfeiture action in addition to the criminal act. This did not happen in this case and there’s no provisions for it to happen.
It was a long fight that we took up pro bono as we do not like when our clients are not treated fairly but Brendan got the right outcome.