Things You Should Know

Our attorneys are here to help!

Whether you simply need some legal advice to get you past a tough situation or are in a more serious scenario that requires representation, our attorneys are here for you. Learning your rights as a Texas citizen is an important factor in knowing how to deal with whatever life throws your way. Take a look at some of our What To Do If... scenarios and you'll know exactly what to do and how to handle yourself "just in case." These links will help you learn how to protect your rights every day. Scroll down to the bottom of the page for some commonly asked questions and what to do.

Things You Should Know about DWI in Texas

Have you ever wondered what to say to a cop when they ask, "Have you been drinking?" Learn how you should respond.

This is one tough question to be sure. First off, let’s talk about what the cop is really after. We have all seen or heard the Anti-DWI (MADD/NHTSA) message about “Drink, Drive, Go To Jail”... Learn More!

Should I refuse to leave my vehicle if I am stopped by law enforcement? What if I don't think the officer has a reason to ask me out of the vehicle?

Yes, you should comply with an officer’s request to exit your vehicle. Even if you think you shouldn’t have to exit, there are several situations where an officer can legally order you out of the vehicle. The main reason is officer safety; officers frequently request drivers step out of their vehicles so they have a full visual of you. Officers also ask drivers out of their vehicles when they have probable cause to search the vehicle or reason to continue the detention for some reason.

It is not a wise idea to refuse to exit the vehicle when asked by a police officer. Read more...

Can you refuse all tests? What about “No Refusal?”

YES! You should always refuse to perform field sobriety tests, when asked by a police officer. You have the right to refuse and you should just say, “NO!”. You may think you can take the tests and do well, but you are very wrong.

All of the employees at the DWI Dudes are certified to administer field sobriety tests. The tests are not pass/fail and the officers will not disclose to you what they’re looking for. It is impossible to do well on a test that you don’t know how to take.

If, as a driver, you refuse to take the SFSTs, the officer will likely arrest you for DWI anyway. However, without SFSTs, the State will have less evidence against you. You do not want to assist the State in building a case against your for DWI by performing SFSTs.

There may be some confusion with the phrase, “No Refusal”. Every day is “No Refusal” in Bexar County, Comal County and other large counties. “No Refusal” indicates that if you are asked to provide a sample of your breath or blood by an officer and you refuse to provide one, officers are able to apply for a search warrant for your blood 24 hours a day. That being said, if you refuse to provide a sample, a warrant will be signed and a sample of your blood will be taken. However, our firm still suggests you refuse; make the cops work! Do not consent to a blood draw! Some counties have not implemented a “No Refusal” policy, which means if you refuse to provide a sample of your breath or blood, they will not be able to pursue a warrant.

The phrase, “No Refusal” does not apply to your right to refuse SFSTs; you should refuse to perform these tests for law enforcement.

Keep on saying, “NO” to SFSTSs and providing a sample.
Be safe! Don’t drink and drive!

What if I consent to a breath test and blow under a 0.08? Can I still be arrested for DWI?

Yes, even if you blow under a 0.08 you can still be charged with a DWI.  If the police officer believes he has probable cause that you are mentally or physically impaired, he can arrest you for DWI, with or without a breath/blood test.  The odds are stacked against you once a police officer suspects you are drinking and driving and it is in your best interest to know your rights.  It is your constitutional right to choose whether or not you want to do any field sobriety tests or consent to a blood or breath test.  Keep in mind that anything you say or consent to will be used against you in the case the State will bring against you if you are arrested for DWI.  It is not as black and white as whether or not you blow under a 0.08!

In Texas, you must be under arrest before the requirement to submit to providing a breath or blood sample kicks in.  This issue arises due to the Implied Consent law which basically says that by driving in the state of Texas you are agreeing to provide a breath or blood sample upon request by a Texas Peace Officer.  For the officer to make that request you must already be in custody (under arrest) for DWI. Don’t confuse this with the small portable hand held breath testing device that cannot be used as evidence in a trial.  We are talking about the large unit that is usually maintained at the police station, jail or other location. That unit is called the Intoxilyzer and is authorized for evidentiary purposes in court.

Are police officers trained on how to perform the HGN Test?

What if the officer is shorter than the person testing, does that affect the outcome of the test? Learn More!

DWI Offenses and Punishments in Texas

There have been several changes to the laws related to Driving While Intoxicated and the consequences of such charges over the past several years... Read More!

If I got arrested for a DWI 30 years ago, can I get it expunged?

It depends on the disposition of the charge or in people terms it depends on what the end result was. If the case was dismissed by the State or was brought to trial and you were found not guilty by the court or jury it can be expunged. And you should know that any Not Guilty verdict allows for an Expunction to be done within 30 days of that acquittal. The court will grant that Expunction by law. You trial attorney needs to file that paperwork for you but if you didn’t have a trial attorney representing you then the prosecutor has to file the paperwork. Sometimes the State will dismiss your case. If your was dismissed and there was no court ordered probation or deferred adjudication for any other offense arising out of the same transaction, other than a deferred adjudication for a Class C Misdemeanor, it can also be expunged. If however, the case was dismissed and refiled to some other offense and you were placed on probation for that offense it probably cannot be expunged, although, if you received deferred adjudication for that offense, such as reckless driving or obstruction of a passageway, and you successfully completed that probation term that record could be sealed but not expunged.

If I am arrested for DWI and I have passengers, are they required to do sobriety tests as well?

Field Sobriety Tests are never required!!

An officer may ask or order you to perform Standard Field Sobriety Tests (SFSTs), but it is your right to refuse. Just say, “NO!” All of the employees at our firm are certified to administer the standardized field sobriety tests. The tests are not pass/fail and the officers will not disclose to you what they’re looking for. It is impossible to do well on a test that you don’t know how to pass. If, as a driver, you refuse to take the SFSTs, the officer may still arrest you for DWI. However, without results of the SFSTs, the State will have less evidence against you. In some counties, the officers will request the passenger(s) of the vehicle to perform SFSTs as well. The officer may do this for two reasons, 1. To determine if a passenger can drive the vehicle home, or 2. To determine if the passengers should be cited/arrested for public intoxication. This is a common practice in some counties. If you are someone you know has been arrested for DWI or Public Intoxication, call our office today!

I was charged with a felony DWI and my vehicle is being held by the arresting police department , how can I get it returned?

If your vehicle (or any property) has been seized after an arrest, you may be subject to a forfeiture lawsuit. Asset forfeiture is a civil lawsuit that the state can file asking the judge to let them keep your property, because you used that property to commit a crime, or because that property is the proceeds from criminal activity. If an asset forfeiture lawsuit is filed against you, the state will serve you with a copy of that lawsuit (usually in person by a sheriff). Once this happens, you have short and very important deadlines to respond to that lawsuit. It is important that you hire a knowledge attorney right away. At our office, we often handle these types of cases and we can help you defend your rights.

Just because the police are holding your vehicle, doesn’t mean they will file a forfeiture lawsuit against you. Sometimes, the investigating officer will release your vehicle. However, this takes careful and skilled negotiations and is best left to an attorney who specializes in criminal defense and asset forfeiture.

I received two DWIs within the same month and they have both been charged as a DWI 1st is that correct?

A person who is arrested a second time for driving while intoxicated (which can mean operating an airplane, boat, motor vehicle or in some cases other specific mechanical devices) before the first case is adjudicated can be charged with another Class B (or first time DWI). In essence that person will have two (2) charges pending at the same time. In my experience I have seen one person that had a total of five (5) misdemeanor DWIs pending at the same time. In these cases the subsequent charges can result in increased bond amounts (the most I have ever seen in Travis County was $1,000,000) and other very onerous terms such as SCRAM bracelets, electronic monitoring, Ignition Interlock and Personal Alcohol Monitoring devices which can be very expensive. In addition although the cases is originally filed as a Class B it may be possible for it to punished as a Class A depending on whether the other case is adjudicated separately notwithstanding the commission date of the offenses. Another consideration is that the punishments can be order to be served consecutively or stacked upon each other which could result in a possible maximum sentence of up to one and one-half years in county jail and up to a maximum of $6000.00 in fines, in addition to surcharges ranging from $3000.00 to as much as $9000.00. Anyone in this situation is in need of competent legal representation.

If I am out on bond for My 2nd DWI and my case is still pending and I was arrested last night on another DWI charge, will this new charge be considered a felony since my 2nd one is still pending?

In order for a person to be charged with a felony Driving While Intoxicated charge, generally referred to as DWI Felony 3rd or more, assuming that no other factors are in play such as a child passenger (person under 15 years of age in the vehicle) or serious injury or death involved, it must be shown that prior to the arrest for the offense that the person has TWICE been CONVICTED of a misdemeanor DWI. In other words, if you have one (1) conviction and two (2) pending, regardless of the outcome of those two (2) the worst is that you would have one (1) Class B Misdemeanor (1st DWI) and two (2) Class A Misdemeanors (2nd DWI). A Class A Misdemeanor is punishable by up to one (1) year in jail and up to a $4000.00 fine and it is possible that where a person is convicted of two (2) Class A’s the punishments can be ordered to run consecutive meaning one after the other.

If I was charged with a DWI three years ago and the case was never filed can I assume the case is closed?

Statute of limitations refers to the time period that the State has to formally file charges against a defendant. In a misdemeanor, the State has two years from the date the offense allegedly occurred. In a felony, the statute is dependent upon what kind of felony it is (this is anywhere from 3 years to no limitation).

For example, if a person is arrested for DWI (Class A or Class B misdemeanor) on January 1, 2015, the State must file an information (the charging instrument) no later than January 1, 2017. If a person is arrested for DWI (felony) on January 1, 2015, the State must secure a true bill of indictment from a grand jury no later than January 1, 2018.

The statute of limitations is tolled (it stops running) once formal charges are filed. Statue of limitations does not effect the time period that a case must be resolved.

Is a warrant necessary ANY time blood is drawn in a DWI arrest?

Typically a warrant is required to draw blood in a DWI arrest, but there are some exceptions to this general rule. The Fourth Amendment to the United States Constitution protects us against unreasonable searches and seizures (search and seizures include blood draws). A blood draw (or any other search or seizures) is unreasonable, unless a neutral judge signs a valid search warrant. There are however a few exceptions to this general requirement; two of those exceptions are consent and exigent circumstances. If you consent to a blood draw (or any search or seizure) you are WAIVING your Fourth Amendment rights, and a warrant is not required. Exigent circumstances refers to some kind of emergency that makes getting a warrant dangerous or too impractical. While exigent circumstances can arise in DWI case, the United States Supreme Court has said that the alcohol dissipating from your blood naturally is not, by itself, enough to justify a warrantless search based on exigent circumstances. See McNeely v. US

If you were arrested for a DWI and not given a temporary driving permit, do you know how to obtain one?

Many times police officers make mistakes and mess up their own paperwork when filing a report... Read more!

Will you still be arrested for a DWI if you Blow Under the Legal Limit?

There is no quick answer to this question. It will depend on what type of blow you are talking about, and the answer will vary greatly depending on where you are arrested and the specific police officer who arrests you... Read More!

What Do I Do If I'm on Probation and Blow a Violation? Do I Call My Probation Officer?

As part of a plea bargain, prosecutors often require an ignition interlock device (IID) or personal alcohol monitoring device (PAM) when a person is either convicted or placed on probation for an alcohol related offense... Read More!

What is BWI in Texas, DWI, and BAC level?

In Texas, it is illegal operate a watercraft (boat, jet ski, and motorized ski-board, or Sea Doo) with a blood alcohol content of .08 or higher or when you have lost your normal physical or mental faculties... Learn More!

Is the BAC Level for a BWI the same as a DWI?

In Texas, both DUI or BUI or Driving or Boating Under the influence are crimes that can only be committed by a minor under 21... Learn More!

Can I Expunge My DWI Arrest After Completing My Pre-Trial Diversion Program?

We were recently asked by a friend the following question: I entered into a pre-trial diversion program for my DWI, can I remove that from my record? The short answer is: yes, usually you can but please read the message below to get a better understanding of what the Program is and why you are allowed to apply for an Expunction under that program... Learn More!

Things You Should Know about Your License

If your license is suspended due to traffic tickets, do you know how to get a valid license?

Unfortunately, Texas DPS is suspending more drivers’ licenses than ever before. The Failure to Appear/Failure to Pay Program encourages small municipalities and JP Courts throughout the state to report unpaid tickets to DPS. Once courts send your info to DPS, DPS will suspend your license until those tickets are taken care of... Learn More!

If Florida issues me a license suspension will it affect my Texas license?

Hypothetical Scenario: While on vacation in Florida I was arrested for a DWI. The arresting officer did not confiscate my Texas License. However, the attorney I hired to handle my DWI has advised me that he will still need to request a drivers license hearing on my behalf.

YES. The Driver License Compact (DLC) establishes reciprocity between states, meaning that your driving record follows you almost anywhere you go. The DLC is an agreement between states that allows for the exchange of information regarding traffic violations, suspensions, and revocations from one state to another. This means that any traffic offenses that occur in one state are treated as if they occurred in the state where you’re licensed. So if your license is suspended in Florida, it will likely also be suspended in Texas.

As a side note, there are a few states that are not members of the DLR, but Texas is not one of them. Therefore, if an individual’s driver eligibility status changes in another state due to a suspension, then the Texas driver license is subject to cancellation. If this happens to you, you must obtain a “clear” or “eligible” status from that state’s driver licensing agency to prevent the cancellation of the Texas driver license. After that step, the person must email Texas DPS to proceed.

Can I get a valid TX Driver’s License when my license is suspended in another state?

No. Unfortunately, when any state suspends your license for any reason, that information is available for other states to view through the Interstate Driver’s License Compact. Further, a contract is in place between all states that each state will honor another state’s suspension or revocation. That being said, as long as you are eligible for an occupational driver’ s license (or hardship license) in the state that is suspending your license, you can petition the court for an occupational driver’s license in the state you are currently living in.

If you need assistance with getting a driver’s license or an ODL, please call our office so we can get you driving legally again.

Will Texas DPS be notified of the suspension?

Possibly. It isn’t a certainty that DPS will be notified from another state; sometimes they do and sometimes they don’t. The DMV in Texas can check to see if a person’s name appears on the National Driver Registration (NDR). The NDR is a database that contains the names of people who have had their license suspended or revoked. So if a party has to renew their license or make changes, it’s possible that this check could be run and DPS would be notified about the suspension. In any case, the suspension from Florida will be entered into a national database and your license will be subject to cancellation - it’s just a matter of when that cancellation will happen unless further action is taken by you to fix the situation.

How long is an Occupational Driver’s License valid?

An Occupational Driver’s License will be valid until the current suspension expires. The reason for the current suspension and the dates of the suspension are required to be included in the ODL petition. Once the judge grants the ODL, it is sent to Texas DPS. DPS will enter the information for the current suspension only.

The maximum length an ODL will be valid for is two years.

If I have an Occupational License that is valid in Texas, can I drive in other States?

An occupational license is something that is imperative for some people who currently have restrictions on their standard license and ability to drive, but it can be expensive and has its own restrictions that come with it. It isn’t a license that will allow you to drive 24-7 like you’re used to, but it’s better than no license, so that you can still get to work, pick up your kids from school, and other basic requirements of daily life. In Texas, an occupational license is a permit which can be obtained if your normal license is suspended.

The occupational license allows you to drive at certain times of the day, despite your normal license being suspended for a DWI or for whatever reason. An occupational license allows you to drive for specific reasons, including: in the performance of household duties, transportation to and from an educational facility you are enrolled at, in the performance of your occupation and to and from your home to place of business. So basically, no joy riding on an occupational license. In addition, you are only authorized to drive for these reasons for a 12 hour span per day.

One critical thing that holders of an occupational license should know is that an occupational license issued by the State of Texas is only valid in Texas, and isn’t valid outside of Texas. An order granting an occupational license generally must specify the areas or routes of travel allowed by the license, so a person issued an occupational license should pay careful attention to staying in those areas so that they are not later held to have been violating the terms of the occupational license.

If I have an occupational driver's license and I get arrested for DWI but do not provide breath or blood, is my occupational license automatically revoked?

Not necessarily, however, as a practical matter once the court that issued the license becomes aware of the new arrest it is likely that it will enter an order pursuant to Section 521.252 of the Transportation Code an order revoking the license. In addition the law enforcement officer making the subsequent arrest will most likely seize the occupation license like they would any other driver’s license and issue a Notice of Suspension and Temporary Driving Permit. A person may not be issued more than two occupational license during any 10 year period.

If I have had two occupational driver's licenses in the last 10 years can I get another one?

A person may have their license suspended if they are arrested for DWI and refuse to provide a sample of their blood or breath. This is referred to as an ALR (Administrative License Revocation) suspension. The suspension period varies depending on whether you have received a prior suspension.

A person will require an occupational driver’s license to be able to legally operate a motor vehicle. There is no limitation on the number of occupational driver’s license a person may receive if they receive an administrative suspension.

A person may also have their license suspended if they are convicted of an offense under Texas Penal Code 49.04, Driving While Intoxicated or for a drug related offense. This suspension period also varies depending on whether you have received prior suspensions.

A person will require an occupational driver’s license under these circumstances as well. Depending on a person’s history, there may be a waiting period. There are limitations on how many occupational driver’s license a person may receive. Section 521.242 of the Texas Transportation Code states that a person may not receive more than one occupational driver’s license in a 10 year period if the suspension is due to a conviction for a drug or alcohol offense.

An Occupational License will get you driving again. After any DWI, you need to know how to get one.

An occupational drivers license (ODL) is a restricted license that allows an individual whose license has been suspended to continue to drive to attend school, go to work, or perform other essential duties... Learn More!

Things You Should Know about Other Types of Cases

Who Created the ALR Hearings, S.O.A.H., and Why?

The Administrative License Revocation (ALR) hearings were created by the Texas legislature in Austin in 1993. It went into effect and Texas has had administrative proceedings to suspend someone’s driver’s license since January 1, 1995. The ALR hearings were created to suspend a person’s driving privilege if that person failed a breath or blood test or refused to provide a breath or blood sample upon an officer’s request after being arrested for D.W.I.

The State Office of Administrative Hearings (SOAH) handles the ALR hearings, as well as other types of state regulated licenses. These include licenses monitored by the Alcoholic Beverage Commission, Department of Family Protective Services, the Department of Public Safety, the Texas Youth Commission, and the Texas Department of Motor Vehicles. D.P.S. refers license suspension hearing to SOAH for the cases to be heard and for an Administrative Law Judge to determine whether or not a person’s license should be suspended. The suspension is automatic unless you request an appeal within 15 days of your arrest including the day you were arrested.

The hearings are slanted towards suspending your license but a qualified DWI trial attorney can use the hearing to your advantage. Our office likes to tie the arresting officer’s testimony down during the ALR hearing so that testimony won’t be invented during a subsequent criminal trial. And if a subpoenaed officer fails to show up at the ALR hearing you often get to keep your drivers license. Let our offices help you either keep your license or use the hearing to your advantage at a later trial. We have done so well at the ALR hearings in the past that prosecutors later dropped the DWI cases against our clients.

During a criminal jury trial can the District Attorney's Office dismiss the current charge and re-file the case under a new charge?

NO. Once a jury has been sworn in and the jury trial has started the district attorney’s office may NOT dismiss and re-file the case. Allowing this would violate the rights of a citizen to only be tried once for a particular alleged crime. The procedural defense that prevents this from happening is called double jeopardy. Double jeopardy prevents a defendant from being tried multiple times for the same or similar offense. Once jury selection has been completed and the Judge has sworn the jury in under oath, the district attorney must proceed with the case or dismiss it without the ability to re-file. However, just like defendants, the district attorney can appeal a jury’s Not Guilty decision. Thankfully, this process is much more difficult and the person found Not Guilty remains so unless the appeal is granted.

If a judge is removed from the bench for a pending criminal case against him, will it have any effect on my case?

Generally no. If a judge is removed from the bench for any reason it is very likely your case will proceed along with a new judge as it was before. Some of the prior judge’s docket procedures or bond requirements may change but it wouldn’t cause your case to be dismissed. The same can be said for the district attorney prosecuting your case. Often times, district attorneys move or rotate to other courts and you may find yourself facing a new prosecutor. If that is the case some hearing dates may be reset and the plea offer can change but the case will very likely continue forward with the new prosecutor or a new judge.

What does it mean when they say my case is going before the grand jury?

When a person has been arrested for a misdemeanor offense, a prosecutor reviews the offense report and supporting affidavit of arrest. If the prosecutor determines there is probable cause to believe the accused committed the misdemeanor offense, they may file an Information. Once this done, criminal proceeding against the defendant commence.

An Information is a written statement filed and presented by the district or county attorney, charging the defendant with a misdemeanor offense.

Texas Code of Criminal Procedure, Chapter 21, Article 21.20.

When a person has been arrested for a felony offense, the prosecutor reviews the offense report and supporting affidavit of arrest and determines if there is sufficient evidence to present the case to the grand jury.

The grand jury is composed of 12 citizens. Their identity and the proceedings are secret. The grand jury is presented evidence by the State. The grand jury must determine whether there is probable cause to believe the accused committed the felony offense. If at least 9 of the 12 members agree, the grand jury issues a true bill of indictment.

An indictment is the written statement of a grand jury accusing the person named of some act or omission which, by law, is declared to be an offense.

Texas Code of Criminal Procedure, Chapter 21, Article 21.01

If a jury finds me guilty can I appeal?

Yes! If a jury finds you guilty you have an absolute right to appeal their decision. However, you only have 30 days from the date of the verdict to request your right to an appeal, so the window is very small. It is also important to know that an appeal is a very rule specific process and must encompass every issue or problem that was present with your case. If you fail to raise a specific problem on appeal you cannot go back later if your appeal is denied and try again with another problem. Hiring an attorney who is experienced in handling criminal appeals is a MUST! To see if your case is eligible to for an appeal, call the DWI Dudes, Attorney Sean R. Simpson and Attorney David P. Lamb to schedule a free consultation.

If I am arrested for assault and the victim does not want to press charges will I still face criminal charges?

Maybe. Once you are arrested for assault, the State will proceed in prosecuting you. However, if the victim of the case is not cooperating with the prosecutor, the State’s case will be weaker. If the victim wishes, he or she can file an affidavit requesting non-prosecution, but that does not always mean the State will dismiss the case. The prosecutors can subpoena the victim to appear in court for pre-trial hearings or trial settings. If the victim does not appear after being properly subpoenaed, a writ of attachment can be filed and the victim would be arrested and brought to court. Once in court and called to testify, the victim would be required to answer questions truthfully and under penalty of perjury (unless a privilege applies). If you are being charged with an assault, you need representation. Please contact our office for further assistance.

If I am arrested for theft, but return all the items to the owner will I still face criminal charges?

It depends on the law enforcement agency investigating, and either the county or district attorney. Once the crime is reported the complainant may not have ultimate control of the case because the charges are brought by the State of Texas. I have handled many cases where the defendant makes full restitution and the criminal charges are dismissed. However, each cases is determined by the case specific facts of the case. For example if the facts can be argued that the taking may have been wrong but there exist facts mitigating the conduct it may be possible to make restitution and have the charges dismissed. If however the theft was by robbery, burglary or embellishment just giving the property back may help mitigate the punishment but will most likely not result in a complete dismissal. Any kind of theft, even a minor hot check, is a crime of moral turpitude and a conviction may have serious consequences for the person in the future.

If I am found guilty of Theft of Service what is the difference in the amount for a felony and the amount for a Misdemeanor?

There are several levels of theft offenses, theft of service included. If the amount is less than $100.00 it is a Class C Misdemeanor and punishable by a fine not to exceed $500.00 only. If between $100.00 and $750.00 (or if the person has previously been convicted of any theft offense) it is a Class B Misdemeanor with a punishment range of up to 180 days in jail and/or a fine not to exceed $2000.00. If between $750.00 and $2500.00 it is a Class A Misdemeanor with a range of punishment up to 365 days in jail and/or a fine not to exceed $4000.00. If between $2500.00 and $30,000.00 it is a State Jail Felony with a possible range of 180 days to 2 years in a State Jail Facility and a fine not to exceed $10,000.00. If between $30,000.00 and $150,000.00 a 3rd degree felony with a punishment range of 2 to 10 years in prison and a fine not to exceed $10,000.00. If between $150,000.00 and $300,000.00 a 2nd degree felony with a punishment range of 2 to 20 years in prison and a fine not to exceed $10,000.00. If over $30,000.00 a 1st degree felony with a punishment range of 5 to 99 years in prison and a fine not to exceed $10,000.00. All theft, even Class C Misdemeanors, are crimes of moral turpitude and carry other lifetime disabilities.

Can I Bring a Witness I want to Subpoena to the ALR Hearing?

The short answer is yes, you can bring witnesses to the ALR hearing at the State Office of Administrative Hearings (SOAH). Theoretically, DPS can prove every element of an ALR case through written documents.... Read More.

If I Win My Jury Trial, Will My ALR Suspension Come Off My Record? Will I Have a Criminal Record for an Arrest?

The first thing to know about an ALR hearing, the hearing for an Administrative Law Judge to decide whether or not to allow DPS to suspend your driver’s license, is that it is a completely separate proceeding from the criminal case... Read More.

Can I Petition The Court for an Early Release of Probation in Williamson County?

Yes. According to Article 42.12 §20, of the Code of Criminal Procedure, a Defendant may petition the Court for early termination after completing one third (1/3) of the probation period or two years, whichever is less. However, a judge is not required to review the request until the Defendant has completed one half (1/2) of the probationary period or two years whichever is less. And then an early termination is still discretionary and up to the Judge and is not mandatory at all... Read More! 

Is a Deferred Prosecution considered being on probation when asked on an employment application?

Answer: NO. Deferred Prosecution/Pre-Trial Intervention are contractual agreements where a prosecutor offers to dismiss the charge against a defendant upon completion of the contract, and a Judge does not accept a plea to any charge under either program. In Travis County, the prosecutors use what they call Deferred Prosecution, and as part of the agreement, the charges against the Defendant are dismissed up front while the Defendant participates in the various parts to complete the contractual agreement. If the Defendant does not complete the program or violates one or more of the terms of the contractual agreement the prosecutor can then refile the original charge(s) and then prosecute the Defendant. However, during the program, if a Defendant is applying for a job, any background check of public records will show the case is dismissed. In other words, a Defendant is not on probation... Read More.

Things You Should Know About Marijuana

I Was Caught in Possession of Hash Oil, What Type of Charge is it Considered?

Under Texas law, hash oil is treated differently (and more harshly) than the marijuana plant. Possession of any amount of hash oil is a felony level offense, and the punishment range depends on the amount with which you are caught. According to Texas Health and Safety code §481.116, the punishments for possession of hash oil is as follows:

· Less than one gram = state jail felony = 180 days to 2 years in a state jail & up to a $10,000 fine

· 1-4 grams = third degree felony = 2 to 10 years in prison & up to a $10,000 fine

· 4 to 400 grams = second degree felony = 2 to 20 years in prison & up to a $10,000 fine

· More than 400 grams = 5 to 99 years in prison (or life) & up to a $50,000 fine

If you are charged with possession with intent to deliver, manufacturing or delivery of hash oil, the punishments are more severe. This is governed by §481.113 of the Texas Health and Safety code, and the punishments for this crime are as follows:

· Less than one gram = state jail felony = 180 days to 2 years in a state jail & up to a $10,000 fine

· 1-4 grams = second degree felony = 2 to 20 years in prison & up to a $10,000 fine

· 4 to 400 grams = first degree felony = 5 to 99 years in prison & up to a $10,000 fine

· More than 400 grams = 10 to 99 years in prison (or life) & up to a $100,000 fine

If you have a medical marijuana card from another state can they still arrest you in Texas for possession if you have less than one ounce?

It is illegal to possess any usable amount of marijuana in the State of Texas. The punishment for possession in Texas increases with the weight of the substance with as little as a usable amount up to 2 ounces being a Class B misdemeanor, 2-4 ounces being a Class A misdemeanor, 4 ounces to 5 pounds a State Jail Felony and even rising to much higher felony offenses both under Texas law and possible violations of Federal statutes subject to substantial prison sentences. The fact that one has a permit to possess marijuana in another state DOES NOT provide a defense to violation of either Texas or Federal law.

If I was driving a friend's car and the cops found Marijuana in the car, who would be charged with possession of marijuana?

Depends on the facts. To be guilty of possession one would have to have knowledge of its being in the car and have "possession" meaning exercising control over the matter. Ownership of the vehicle might be some evidence that the person knows what is in the vehicle. If the substance is in plain sight that would also be evidence of intent to exercise control and thereby possession. Of course never make any admissions as to what it is or where it came from.

If I am a regular marijuana user and I have been offered the PTI Program in Williamson County for a POM charge, should I decline?

If a person accepts the PTI (Pretrial Intervention) in Williamson County it is very likely (and in the case of a person charged with a Possession of Marijuana a virtual certainty) that sometime in the six month deferral period that a drug screen will be performed. Unless you make a commitment to completely abstain from smoking I would not recommend signing the PTI agreement. I would not trust any product that claims to clean your system in anticipation of drug tests. I have seen several clients fail a test after relying on those types of products. The PTI is a contract between the defendant and the State wherein the State agrees to dismiss the charge provided the defendant FULLY complies with the contract. In the event the defendant breeches the contract a pre-determined sanction is agreed to and will be imposed by the court and the defendant will not get credit for anything done while in the program.

If have to take a urine test, how long will marijuana stay in my system?

The answer to this question varies greatly from person to person. A very loose rule is that you will test positive for 30 days, but some people report testing positive for much longer than 30 days after their last use. THC (the chemical in marijuana that gets your high) is a fat-soluble chemical. This means that the chemical is stored in the fat cells of your body. The higher your body fat content and the heavy your use of marijuana was, the longer it will be in your system. As your body breaks down fat, the THC which was stored in those cells is released into your body. This is why, if you are concerned about failing a urine test for marijuana, it is important not to engage in any strenuous activity in the days leading up to your test. It may cause your body to break down extra fat cells and release THC, While there are many substances on the market that claim to help pass a drug test, the only guaranteed way is to abstain from use and allow your body amble time to detox.

f I am arrested in a post office parking lot for Possession of Marijuana, is that a federal offense?

This possess an interesting question because it calls into issue both State and Federal Criminal laws. It should be noted that possession of marijuana is both a crime in Texas and it is also a crime under the laws of the United States. A person could be tried, convicted and punished both on a state basis and as a federal crime and double jeopardy does not apply because these prosecutions take place under separate jurisdictions. However, it is rare that the Federal Government prosecutes people for minor marijuana offenses. Now, with respect to the location of the offense, generally a crime that occurs on "Federal Property" can be prosecuted in a Federal Court. Generally "Federal Property" means property that is owned by the Federal Government, such as a military facility or perhaps a hospital or other such government building owned by the Federal Government. For example if you are arrested on a military base for driving while intoxicated it is likely you will prosecuted for that offense in a Federal Court. For the most part United States Post Offices are facilities leased by the USPS and do not belong to the Postal Service. Unless you are arrested for possession of at least a kilo of marijuana or some high number of marijuana plants it is unlikely you will be charged with a federal crime.

Things You Should Know About Firearms

How do I get my gun back if I'm a CHL holder and it was confiscated due to a DWI arrest and the case was dismissed?

Texas Open Carry Law is Here

On May 29th of 2016, Texas Governor Greg Abbott signed a bill that will allow Texans with a Concealed Handgun License (CHL) to openly carry a handgun in public beginning 2016. However, it is important to know that you MUST have a CHL or openly carrying a firearm in public will result in a criminal case being filed against you. Just like the current concealed handgun law, the bill requires anyone wanting to openly carry a handgun to pass a background check, be over 21 years of age, and receive classroom and range instruction. Anyone who intends to carry a handgun in plain sight should know that they will be required to show law enforcement proper licenses and officers will not need a reason to approach you to check. It will be interesting to see how this new law will affect police interactions with citizens since Texas has already issued approximately one million concealed handgun licenses.

If you were charged with a DWI that was dismissed and had a weapon confiscated you should call the DWI Dudes, Attorney Sean R. Simpson and Attorney David P. Lamb to help! Once a case has been dismissed the Court and DA should sign an order to return your weapon to your possession. However, many time unless an attorney drafts an order to return the items and presents it to the Court the Court and/or DA’s office will not make any attempt to return the weapon. After a period of time the weapon may be forfeited if you do nothing about it so make sure you contact us immediately to get your weapon back!

I was arrested for felon in possession of a firearm I know my case can go federal. who decides if case will proceed to federal court?

A felon that is in possession of a firearm can be charged either in state court or federal court or BOTH. Since each venue has a statute making the conduct a crime and each has separate jurisdiction it is possible to be charged, tried and convicted in each of those jurisdictions. As a general rule I think it better for the case to be handled on the state level because it is usually easier to deal with the state prosecutors, even to the point of having the charged reduced to a lesser offense.

What do I do if I am arrested at the Airport for Unlawful Carrying of a Weapon? Can I keep my weapon?

It is highly unlikely you will be allowed to keep the weapon. It is also very likely you will be charged with the crime of unlawful carrying a weapon which is both a state crime and if an airport, or on property belonging to the federal government, a federal offense as well. A person can be punished both on the state offense and the federal offense because each is a separate jurisdiction and double jeopardy does not apply. Having handled a number of these cases in Travis County, provided you have a valid hand gun permit and you have a clean criminal history, the feds will require you to pay a fine ($500.00 to a $1000.00 dollars) and decline prosecution. In Travis County you will be required to show proof of this payment, surrender your concealed handgun permit for one year to the Travis County District Attorney for safe keeping and forfeit the weapon. At the end of the year the license will be returned to you. The case will most likely be thereafter dismissed without further prosecution.

If I get pulled over do I have to notify the officer that I have a gun in my car?

Provided you are not engaged in a criminal act above a Class C Misdemeanor (generally minor traffic offenses) or prohibited by law from carrying a weapon it is legal in Texas to have a concealed gun in your vehicle. You are not required to inform an officer of the fact that a gun is in the vehicle. However, if asked I suggest you be honest if directly asked. You are required to show the officer your Concealed Handgun License if you are stopped and you can bet he already knows if you are driving your own car.

More Things You Should Know

If you are walking down the road and a police officer asks you for your ID, you must show them. True or False?

Both true and false. In order to make the request the officer must have reasonable suspicion for the initial encounter. The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. Citizens have a right to privacy in their ordinary lives and in order for the government to invade that privacy the law requires that the police have a reasonable suspicion to initiate a detention of the individual and an arrest requires more than that, probable cause to believe that a crime has occurred and the individual committed that crime. That having been said it is also true that police officers, like other citizens, have the right to approach someone and ask questions. Just as the officer is free to ask questions the individual is free to refuse to answer EXCEPT that a person is under a duty to at least give their name and possibly a form of identification if requested by police officer who has properly identified himself. Beyond that no citizen is required to answer any other questions and the safest policy is to immediately say “I want a lawyer and will not answer any questions until I speak to one pursuant to my rights under the 4th, 5th and 6th Amendments to the United States Constitution. You must remember that the police will try in many ways to get you to answer questions or make denials or admissions and it is very dangerous to fall into that trap. REMAIN SILENT after you state as I have set forth above.

Can I get arrested for speeding?

In Texas, no, you cannot be arrested solely for speeding. There are two traffic offenses that you cannot be arrested for in this state:

1. Speeding
2. Driving with an Open Container.

However, there is a caveat to the above statements. If your speed is so excessive on a Texas roadway that it arises to the level of reckless driving, then an officer is authorized to arrest you for that offense. There is not a precise miles per hour over the speed limit that allows the officer to make an arrest for reckless driving, but the officer must have probable cause. (I’ve heard the myth, “if you are going over 100mph, you can be arrested”; that is not by itself true, however, if you are travelling over 100mph, the officer may have probable cause for a reckless driving arrest)

Except for the two listed above, you can be arrested for all other traffic offenses in Texas. It is an officer’s discretion whether he issues a citation or makes an arrest. The officer can also make an arrest if a citizen refuses to sign the promise to appear at the bottom of the citation.

Are the cops allowed to search my car or my person if I am not under arrest?

In order to search a citizen’s car law enforcement officer must have either a warrant issued by a judge or probable cause to believe that a crime has been committed or is in the process of being committed. The arrest of the owner is not a prerequisite to either of these situations. However, if the driver or operator of the vehicle is arrested for some other reason than the arrest may give rise to a search of the vehicle.

By way of example let us assume that a driver is stopped for a routine traffic offense and during interaction with the driver the officer says he smells marijuana emitting from the vehicle. This odor may give rise to probable cause to believe that marijuana is inside the vehicle and a search of the car could be warranted without the necessity of a search warrant. It would not be necessary in this situation for the driver to be under arrest to conduct the search. If however instead of the odor of marijuana and if the officer actually sees a green leafy substance in the vehicle it is possible that an arrest may occur for possession and then a search conducted incident to that arrest. The situation could become more complicated where an officer has made a stop and does not smell or see any contraband but based on other articulable facts amounting to probable cause has a reasonable belief that a crime is in process, he may have some leeway to investigate further. Provided such investigation does not amount to an unreasonable period of detention to the driver.

It is important to remember that if a person gives consent to a search, that consent cures any defect that may exist to the lawfulness of the search. In other words never consent to a search. With respect to your person the police are permitted to pat you down for weapons for officer safety. This does not permit an officer to reach inside your pocket if they feel something that could not possibly be a weapon. In order to do something other than a pat down the officer would need probable cause as mentioned above.

What should I do if the officer starts being aggressive with me while I am stopped for questioning?

Unfortunately officers sometimes are unnecessarily rude or aggressive, and returning an officer's bad attitude will not help your situation. The best thing you can do in this situation is to keep calm and record on! It is perfectly legal to film police officers. Filming the officer can protect you if the situation escalates, but filming the officer may also help calm that officer down. Early this year, a study was published that monitored the effects that body cameras had on police. The study was conducted in Rialto, California, and it found significant drops of use of force and civilian complaints with the officers were wearing body cameras. Most phones on the market have the ability to record audio and video. If you are stopped in a vehicle, you can activate the recording device and set it on the dash. There are even small and affordable cameras on the market that you can mount inside your vehicle. Until we demand from our law enforcement that every police-citizen encounter be videotaped, the burden to protect ourselves will continue to fall on us the citizens.

How long does an arresting agency have to turn in a probable cause (PC) affidavit following an arrest?

Article 17.033 requires that a person who is arrested without a warrant and is detained in jail must be released on bond. The law explicitly provides for an automatic release of defendant if no finding of probable cause is made within:

- 24 hours in cases of misdemeanors.
- Bond in an amount not to exceed $5,000.
- 48 hours in cases of felonies.
- Bond in an amount not to exceed $10,000.

Can I legally drive on the highway below the speed limit?

Yes and No. This answer is a little tricky because there are times where it is perfectly legal to drive below the speed limit and other times when it is not. Let’s first start with how far under the speed limit would be acceptable under normal driving conditions. Most cities in Texas enforce laws that require someone to go no more than 10mph under the posted speed limit during normal conditions (be sure to check your city ordinance because they vary throughout the state!). The reasoning behind the law is so that other drivers won’t be impeded and to help reduce the possibility of traffic accidents. For example, it would generally be ok for someone who is not impeding traffic to be traveling 60mph in a 70mph zone. However, even if someone were not impeding traffic, it would very likely be a traffic violation for someone to be traveling 50mph in a 70mph zone because of the possibility of an accident. However, we have all been on the road driving when for some reason or another it would not be safe to drive the posted speed limit. For example, when driving conditions are bad because of rain or snow it may be appropriate to slow down way below the speed limit to safely operate your vehicle. In these instances, there is no rule other than maintaining a speed that is safe for you and others on the road. A good rule of thumb is to keep up with the flow of traffic on the highway or go only slightly below and be familiar with your city ordinances.

Is it a criminal act to drive through a barricade blocking the roadway?

If police or city officials have placed a barricade blocking the roadway, it is a criminal act to disregard and attempt to drive through the barricade. Unless you have permission from the city or police do not go around a barricade blocking the roadway. In some instances, going around a barricade may be acceptable but you should always double check with an official first to avoid any potential criminal liability. Barricades are often placed on roadways for the general public’s safety and many officers treat a violation of this kind very serious. In some instances, disregarding a road barricade could potentially lead to very serious criminal charges if someone gets injured because a barricade was driven through. If you receive a citation or court summons for driving through a barricade call our offices immediately to schedule your free consultation.

If I receive a ticket on duty on striking an object will I be arrested or can I just pay a fine?

Duty on Striking an Object is actually a Class C Misdemeanor if the damage is less than $200.00 Dollars and a Class B Misdemeanor if the value of the property is greater than $200.00 Dollars. This applies to a structure adjacent to a highway or a fixture or landscaping legally on or adjacent to a highway. A Class C is punishable by a fine not to exceed $500.00 while a Class B is punishable by either 0-180 days in jail and/ a fine not to exceed to $2000.00. The driver has a duty to take reasonable steps to locate the owner of the property and to file a report to the Department of Public Safety or the locale authorities. Failure to do so may get you arrested.

If I am in an auto accident driving a friend's car does my auto insurance cover the damage?

The general rule is if you are driving another’s vehicle, with that person’s permission, your own insurance is the primary insurance on the vehicle at that time. In addition, the owner’s insurance is also covering the vehicle. For example, if you rent a vehicle, you are not obligated to purchase additional insurance for the vehicle, although there may be some advantages to doing so.

In a public restaurant can I order and serve my underage child a alcoholic beverage?

Yes. A person commits an offense if he purchases an alcoholic beverage for or gives or with criminal negligence makes available an alcoholic beverage to a minor, however, a person may purchase an alcoholic beverage for or give an alcoholic beverage to a minor if he is the minor's adult parent, guardian, or spouse, or an adult in whose custody the minor has been committed by a court, and he is visibly present when the minor possesses or consumes the alcoholic beverage. It may be possible for even a parent to become liable for a crime, if it can be determined that such action could be considered as child endangerment if it is done in such a manner that actually amounts to placing the child in danger. So one drink in the presence of the parent is legal but getting the child drunk could lead to problems.

Can a UTSA or any college police officer stop you in areas beyond campus?

Generally, yes. The rules governing campus police officers can be found in part in section 51.203 of the Texas Education Code. The primary jurisdiction of a college police officer includes all counties in which the university has some property under their control. For example, Texas State University has campuses in San Marcos and Round Rock, therefore their officers’ primary jurisdiction would include Hays and Williamson County. If within their primary jurisdiction, a campus police officer may enforce all traffic laws on streets and highways.

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