Jim is correct; a "defense to prosecution" means you can still be arrested, prosecuted and you have to prove your defense.jimlongley wrote:Neither the way I understand it, and IANAL. The "defense to prosecution" merely allows you to use it as a defense when you are prosecuted, and puts the onus on you to prove it.
However, there is an interesting case out of the Ohio Supreme Court dealing with "defenses to prosecution" and a §1983 suit against the arresting officer. I don't recall the exact facts of the case, but a person was arrested for an offense and it was either clear that he would be successful in proving a "defense to prosecution," or with only a question or two, the officer would have known that the defendant would prevail. The officer's defense was that a defense to prosecution must be proven in court, so he didn't violate the defendant's civil rights. (It sure sounded like a "you may beat the rap, but you won't beat the ride" situation.) The court held that it is a civil rights violation to arrest someone when it is abundantly clear, or with minimal effort on the officer's part it would have been abundantly clear, that the defendant would be acquitted of the charge. (That's my paraphrase of the decision and I haven't seen it is quite some time, so my details may be in error.) This is an Ohio case, not Texas, but the rationale could well be accepted in Texas.
If this bill passes, it would be risky business to make an arrest when the business was not posting a 51% sign. I doubt may DA's would accept the charges based on those facts.
Chas.