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Category Archives: Criminal Law

You are not your case

You are not your case.
One of the most important things to remember when you get into criminal legal trouble is to try to not let it consume you. In all likelihood, this is your first brush with the law, the end result of some combination of bad decision making and bad luck. But unless you are a member of the Gotti family, chances are you are not a career criminal.
You can feel bad, guilt, embarrassment, or just plain dumb after an arrest, but what you did (or are alleged to have done) doesn’t define who you are. Look around you; look at your friends, family accomplishments in life and everything else that makes up the majority of your day, week, month, and even year. Don’t focus only on those few brief moments where there was a lapse in judgment or simple twist of fate that brought you face to face with the criminal justice system.
At the end of the day, this too will end one way or another and you will be free to carry on with your life as usual. In the meantime, there is some value in letting a professional carry the burden of dealing with your criminal case for you. Let your lawyer handle the day in and day out rigors of dealing with the law, the complex rules, the technicalities, negotiation and preparation. Find the right one, and they will lay it all out for you and give you all the risks and rewards so you can make an informed decision knowing that the nebulous world of “what ifs” when you try to go it alone no longer exists. Let your lawyer handle the problems, let them deal with the daily stresses, and get back to being you. After all, they don’t call us “counselor” for no reason.

-Ryan K. Lee

 

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Weed, Texas (a little clarity about marijuana possession in Texas)

I haven’t actually checked, but since Texas has a town or city named after almost everything conceivable (Bacon, Turkey, and Coke just to name a few), there could be a Weed, Texas. But this isn’t a post about some tiny town with one stop sign in the middle of a farm to market road. It’s about pot, weed, grass, ganja, bud, swag, or any of the other myriad of names marijuana goes by. There is one thing we can all agree to call it if you are within the vast borders of Texas, and that is “illegal.” Sorry to the aficionados, those with medical issues, and future and former Coloradans, but there is no legal way to possess marijuana in Texas. De-criminalized? Nope, not that either. While there are some local jurisdictions in Texas that allow ticketing for small amounts of the green stuff, it is still a jail-able offense. Under 2oz, meaning anything from a “usable quantity” on up, is punishable as at minimum a Class B misdemeanor. Meaning the range of punishment is up to 180 days in the county jail and a $2,000.00 fine.

So where does that leave you? Are you really going to jail for a joint? Well, in most jurisdictions in Texas, the answer is yes, at least for the night you get caught anyway. But what about that 180 days? Well, probably not for that long, but that depends on a lot of things.

For now, we will skip past legal defenses to possession, and just go with being guilty. (If you want to know what the legal defenses are, you need to talk to a lawyer about the specifics of your case). So, you did it, you know it, and there is no good way to get around it. What happens now?

This can depend on your attitude at your arrest, your age, your responsibility level, and your willingness to cooperate with the things that the prosecutor’s office wants you to do to prove yourself worthy of a second shot.

Punishments can range from conditional dismissals that require drug screenings, probation where a conviction is deferred or not, all the way up to serving some jail time.  Probation for a class B can be up to 2 years and can include drug classes, reporting, drug screening, community service, and payment of fines and fees.

Some folks, believe it or not, ask for the jail time just to get it over with and move on. They don’t want to do community service, don’t have the money for fines and probation fees, don’t want to be monitored for months or years, they don’t want to quit smoking, or have any number of reasons that it just won’t work for them. Some important things to remember though is that a conviction (which if you choose jail, you will have) can affect you in ways you didn’t imagine for the rest of your life. Potential driver’s license suspensions, being denied federal student loan assistance and the effects on potential employment are just a few.

You may not like that marijuana laws in Texas are this way, you may wish things were different here, you are not alone (check out this poll by the Texas Tribune). If you want things to be different, you have two options, you can vote to change it, or move to Colorado (or Washington State.), but who wants that? Stay to try and change it and maybe one day we will have a Weed, Texas. Until then, know your rights.

by: Ryan Lee

 

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Expunge Me Not

“Can I get my record from when I was young/a kid/apparently temporarily brain dead expunged?”  This question is common, and valid. We all make mistakes, and as the years go by and we have proven ourselves responsible, upstanding citizens we expect there to come a point when those mistakes aren’t held against us. Right? So we start to wonder about that funny legal term; expunction. Expunction, when applicable, is a procedure to have all records of an arrest, charge, court proceedings and sentencing returned to the court and destroyed. Literally, returned to the court and destroyed. Sounds great, but does your criminal case qualify for such an extraordinary measure?

The problem is, unlike all those hijinks on your “permanent record” from elementary and high school, your criminal record will not disappear with your acne and awkward teenage years.  Why not? Look no farther than the statute itself.  Article 55.01 if the Texas Code of Criminal Procedure gives us the very narrow circumstances under which a person has a right to an expunction. The right exists when: someone was tried and acquitted; convicted and subsequently pardoned (and good luck getting Mr. Perry on the phone for that one); someone is granted relief on the basis of actual innocence; or the person has been released and the charge has not resulted in a final conviction, is no longer pending, and there was no court ordered community supervision under Article 42.12 for the offense.

It’s that last part, about the community supervision, that seems to trip most people up. Yes, many people are given a deferred adjudication for an offense and put on probation. Some of them even make it all the way through on probation without getting revoked and adjudicated guilty. Then, once that probation is complete, the charge is dismissed and there is no final conviction. However, that fact that there was probation qualifies (typically) as community supervision, whether you reported to a probation officer or not. I should point out that these rules apply to class B misdemeanors and up, excluding class C misdemeanors which tend to be akin to traffic tickets and the like.

So you got arrested, and got the charge deferred, and successfully completed probation. That is all great, and you won’t end up with a criminal conviction, which was worth it. But are you entitled to have all evidence of your arrest, court proceedings and charges completely and finally obliterated? Sorry, but the answer is probably no.

There are other alternatives, such as an Order of Non-Disclosure, that the judge likely mentioned during your sentencing. No one will blame you for not remembering that little detail when you were being sentenced, as there was probably a-lot of other things occupying your mind.  The order of non-disclosure doesn’t destroy any records like an expunction will, and the police and other law enforcement agencies will still have access to your record as will a whole slew of licensing agencies. But if you are looking to keep John Q. Public from finding out about that one and only time you decided to try your hand at being a small time criminal, only to learn you were worse at it than long division and remembering what the Pythagorean Theorem is, maybe this option is right for you, even if the clerks at the courthouse won’t be building a little bonfire with your criminal record.

By: Ryan Lee

As usual, please do not take this as legal advice about your specific case. If you have questions, please contact a criminal lawyer.

 

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To Breathe or Not to Breathe?

Some of the most common questions I get asked as a criminal lawyer involve the breath and blood tests during or after a D.W.I. (Driving While Intoxicated) stop. People want to know “do I take the breath test?” Or, more often than not, “should I have taken the breath test?”  Well, I won’t tell you what you should or should not do, that is up to you, but an informed decision is never a bad thing, right?

Let’s start with the basics. There are two occasions where a person is asked to give a sample of their breath, before arrest and after.  If you have not been arrested, then the test is being used to determine if there is probable cause for your arrest.  The result of this test may assist the officer in his decision to make an arrest, but the results will not have an effect on your driver’s license and will likely not be admissible in a subsequent prosecution.

The second occasion is after your arrest. Once an officer places you under arrest for the offense of Driving While Intoxicated the officer will request a specimen of your blood or breath. He makes this request by reading to you, a person who is now enduring the stress of one of the most nerve racking events of their lives, a long form called the Police Officer Statutory Warning.  This form, provided by the Texas Department of Public Safety, explains that you are under arrest for the offense of Driving While Intoxicated (D.W.I.) and are being asked to give a specimen of your blood or breath, and that the specimen will be analyzed to determine the alcohol concentration in the blood or breath sample.

The form goes on to state what a refusal means for your driver’s license in the state of Texas. I am only covering the ramifications of a DWI first here (for seconds or thirds etc. please take a look at the form, though I often assume if you are on number two or three you are somewhat familiar with this process already). For a first offense, a refusal to give the sample can result in your license being suspended for 180 days.

The form also states how consenting to the test affects a person’s license, should the testing reveal that the person has a blood alcohol concentration at or above a .08 (the so called “legal limit” in Texas).

In Texas, a driver’s license suspension hearing (Administrative License Revocation hearing or ALR) is separate and apart from a criminal case for committing the offense of D.W.I.  What the officer is not telling you is that if you fail the test, they will certainly be using those results against you in the license revocation hearing and the criminal prosecution. Oh, and don’t ask if you can talk to a lawyer before refusing or consenting, there is no right that grants you the opportunity to consult one first. Whether you realized it or not, you signed a consent to give the specimen when you got your license. So if you ask for an attorney first, the officer may just laugh at you and ask again or he might just take your request as a refusal.

At this point, you are already under arrest for the offense, so taking it doesn’t mean you will be set free, even if you pass. In fact, if you give a sample of your blood, the results for that won’t be available for weeks.

So let’s say you refused. You are now facing a license revocation by the Department of Public Safety. You can either take it lying down or request a hearing on the suspension within fifteen days. I always recommend the latter. If you request a hearing, the Department has to put on evidence that there was: a) reasonable suspicion to stop you, b) probable cause to arrest you for the D.W.I., and c) that you refused to give a specimen. While it is generally easy for the Department to successfully do all of this and suspend your license, sometimes these can be won through effective argument or by subpoenaing the officer to attend the hearing and that officer doesn’t show for the hearing because he has better things to do (i.e. fighting crime). Win and you get to keep your license.  If you consented to the test and failed (.08 or higher) you will likely lose your license for 90 days, but if you passed, you also get to keep your license.

Let’s move on to the criminal prosecution for a D.W.I. Now, try to imagine fighting your D.W.I. case in court with an affirmative finding that your blood alcohol level was a .08 or higher. Not looking good is it?  The officer on the side of the road essentially asked you to turn over evidence against yourself. I know… I know there seemed to be something in the Bill of Rights about that…but somehow it doesn’t apply here, because remember, you signed that away to get the license in the first place. You give them the sample, and they can do a little victory dance. (Just for fun, here is a video of some dancing cops).

But wait, there’s more! The law on D.W.I. was amended last year and went into effect September of 2011. Now, if you are found to have a blood alcohol level at or above a .15, the offense can be charged as a Class A misdemeanor. Normally, a D.W.I. 1st is a Class B misdemeanor. So there seems to be a disincentive to consent to the blood or breath test.

Of course, if you consented, and passed the test, the prosecution against you becomes much more difficult. Most counties will typically not file the charges against you in the first place, while others (though rare) may still choose to prosecute you  (I’m looking at you Collin County) on the theory that you had lost control over your mental or physical faculties due to the introduction of alcohol.

So do you give the sample or not? Well, it is always up to you. It is your call and yours alone and there will be no one there to advise you when faced with the choice. Now, if you know you can pass with flying colors, you may avoid some legal hassles (though not a night in jail, by the time you get the results you will have long since been arrested, released, and given a court date) and a prosecution for the offense. But what if you are not sure where you will fall? After all, it is not illegal to have a drink then drive (provided you are above the age of 21), only to drive while intoxicated.  The choice is up to you, but at least now, you might be armed with the facts before you find yourself saying yes or no to the question: Will you provide a sample of your breath or blood?

by: Ryan Lee