Were You Arrested in Texas and Need Help? Check Out Our FAQs
A face-to-face meeting with Walter Reaves will help answer all of your questions, but until then, here are a few of the most frequently asked questions we hear.
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Can I talk to a lawyer before taking a blood or breath test?
The decision on whether or not to take a breath or blood test is an important one. Because it is so important, most people believe that you have the right to talk to a lawyer before you make the decision. Unfortunately, that is not the case.
The law in Texas has always been that you don't have the right to consult with a lawyer before deciding to take a blood or breath test. Not only do you not have the right to talk to a lawyer, if you ask for one, the state can use that at trial. They then use that request to argue you must have been drunk, because a sober person would just take the test and assume they would pass.
The main reason for this is that even though you have been placed in a police car, and taken against your will to the police station, jail, or some other location, the request to take a breath test is not considered “interrogation.” Miranda warnings are only required when someone is in custody, and is not and is being questioned. Simply asking you to take a breath or blood test is not questioning, so warnings are not required.
Another reason is that when you accept a driver’s license, you give implied consent to submit to a breath or blood test on request. While you can refuse to take the test, the refusal has consequences. That’s a subject for another post, but just know that if you refuse to take the test your license is going to be suspended; and for a longer time than if you had taken the test and failed it.
There’s also a practical reason. Most people don’t have a lawyer on call, so it’s going to take some time to find one. And since alcohol steadily dissipates, the State basically “loses” evidence the longer the delay.
Not all States take the same position. The Supreme Court in Hawaii recently held that an individual has the right to consult with an attorney before they take a blood or breath test . To my knowledge, they are the only State to hold that. And as with most court decisions, it’s not as favorable as it appears. You still must show the failure to allow you talk with a lawyer affected your decision. The defendant couldn’t do that, so he lost anyway.
The take from this is that you don’t have the right to talk a lawyer, so don’t ask. You’ll just give the State something else they can use against you.
If you want more information on DWI law, request a FREE copy of our DWI Survival Guide. If you've been arrested for driving while intoxicated and need to talk to a lawyer, fill out our contact form, or give us a call at 254-296-0020.
What if the Police don't read me the Miranda warnings?
It least once a week I have someone tell me the police didn't read them their Miranda warnings. Everyone knows what they are: you have the right to remain silent, the right to a lawyer, etc.. On TV, the police do it every time they arrest someone. But like most things on TV that's not the way it happens in real life.
Miranda warnings came from a Supreme Court case styled Miranda v. Arizona. The case dealt with police questioning after they have arrested someone. Everyone has heard the expression "I take the Fifth". That's referring to the Fifth Amendment to the United States constitution, which protects people from incriminating themselves. Basically that means you have the right to keep your mouth shut, and not talk. It comes up in several different ways, but the most common is when the police are trying to question you - like asking you much you had to drink, or how many times you hit your wife.
The Supreme Court recognized that a police interrogation is not like most encounters. The police have the power, which they can use to try and get you to talk. And once you start talking, you are likely to say something that's going to help them prove their case. To balance that power out, the Supreme Court held that the police had to tell you certain things - one of which is that you don't have to talk to them, and if you do, anything you say can be used against you. They also have to tell you that you have the right to have a lawyer present if you want one.
There are two important limitations on Miranda:
- It only applies if you are in custody (which usually means if you've been arrested
- It only applies if you are being questioned (i.e. they are asking you questions)
When warnings are required is a topic for a different discussion. The question answered here is what happens if the police don't "read your rights" to you. Most people who ask that question assume that it's important; maybe even important enought to invalidate the arrest. I can't begin to estimate the number of people who start of a meeting with the statetment that the police didnt read me my rights. The response they get is not what they expect.
The fact is that the failure to give Miranda warnings is almost always a non-issue. It's only an issue if you were questioned after you were placed in custody. Consider a typical theft/shoplifting case. A store manager sees someone walk out with merchandise, and call the police. The person is arrested, and taken to jail with the officer reading the Miranda warnings. In that case, it makes no difference.
The situation would be different if after you get to the jail, a detective comes and talks to you and starts questioning. Before they do so they must give you the Miranda warnings, and if they don't, they aren't going to be use what you tell them.
The reality is that police rarely fail to give Miranda warnings before they start questioning you, so you probably need to look for another defense
If you want more information on the the Criminal Justice System get a free copy of our book, The Layman's Guide to the Criminal Justice System. If you've been arrested in Waco, McLennan County, Bell County, Hill County or Falls County, and are looking for help, give us a call at 254-296-0020, or fill out our contact form.
Should I go with a court appointed attorney
We get this question a lot - especially in more serious cases. Most times, the answer I give surprises people. You would probably expect a lawyer to try to convince you to hire them, but that's always the best decision. There are several reasons for that.
If you qualify for an appointed attorney, you have already established that money is an issue. Unless you have a rich uncle, that means you are going to be limited in how much you can pay a lawyer - which can be a problem. It's probably not a surprise, but the best lawyers usually charge the highest fees. They can do so, because they're generally worth it. If money is an issue, you aren't going to be able to hire one of the best lawyers in town. That means you are going to have to shop on price - which is never a good thing. If you need surgery, would you shop around for the cheapest surgeon? If the answer is no, why you should hire the cheapest lawyer when your future is at take.
Lawyers who charge low fees need a high volume of cases to make a living, which means they have less time for each casse. The reason to hire a lawyer is to get someone who can focus on your situation and your case.
I cannot speak for other counties, but I can tell you that in McLennan County, the quality of court appointed lawyers is pretty. Even most of the better lawyers are on the appointment list. So the chances are that you are going to get a good lawyer, who is going to work for you.
How do you know if you've had too much to drink and drive?
Despite all the ad campaigns, it's still not illegal to drink and drive in Texas - even Waco, Texas. While that's good advice, it's not the law. You don't commit a criminal offense unless while you're "intoxicated". That is defiined as having an alcohol concentration of more .08 in your blood or breath, or not having the "normal use of your mental physical faculties".
So how do you know if you've had too much to drink and drive. Since alcohol alters your judgement you aren't the best person to make that decision. I can't tell you how many people I've had tell me they were "fiine" and did "great" on the field sobriety tests, and when you look at the tape they were barely able to stay standing.
While nothing is absolute, there are some general estimates you can make based on how alcohol is absorbed and processsed in your body. Once ingested it will be absorbed, and then after a period of time your body will start to metabolize the alcohol, and it ends up being eliminated through the urine.
You can make a rough calculation of your blood alcohol content by knowing a few things. Generally, you process and eliminate the equivalent of one drink every hour; so if you only have one drink every hour you are going to be in pretty good shape - unless you're doing that over 10 or 12 hours and then you probably have other issues. There are a number of calculators out there which account for various factors, including weight and sex. Here's one from the National College of Drunk Driving Defense (which I'm a member of by the way), that will give you an estimate. Rembember it's just an estimate - If you are close to the limit I certainly wouldn't risk it; especially since the testing devices used are not entirely accurate; even blood tests have margins of error, so you could actually be under .08, and end up with a result over .08.
You also need to remember that the police officers are going to err on the side of caution. If they suspect you "might" be intoxicated you are going to get arrested and taken to jail. Even if you end up being released, that's not a pleasant experience. What that means is you need to err on the side of caution also. Don't chance an arrest - stay a little longer at the party, or have someone drive you home.
If you want me to know more about driving while intoxicated law please download our FREE resource. Simply click the link to the side.
Do I have to show up in court to obtain an order of non-disclosure?
You probably aren't suprised that students attending Baylor occassionally get in trouble. For the most part they are relatively minor offenses, and we are frequently able to obtain deferred adjudication for them. After they graduate they generally move off, sometimes even to other States. They then want to obtain an order for non-disclosure, and one of the first questions is whether they will have to take off work - usually from their new job - and come to court.
The question is it depends. A couple of judges want you to show up - mainly so they can talk to you. Others will simply sign the order if you have the agreeement of the District Attorney. Suprisingly, the felony court judges in McLennan County don't make you come to court. Maybe it's because they don't have many motions for non-disclosure to deal with, since deferred adjudication is rarely granted. Or maybe it's because they have a lot of other stuff to do, and recognize that there's no reason to take up their time with a motion they know they are going to have to grant.
The good news is that if you do have to go to court it's usually a short hearing. Other than the inconvenience, it's not a traumatic experience.
If you are trying to obtain a motion for non-disclosure it's always better to use an attorney in the county where you were placed on probation. They will be familiar with the procedures in that county, including such issues as when you have to show up for court. Local knowledge in this situation is valuable. Additionally, it is going to be cheaper, because they won't happy to travel to another county.
If you have questions about obtaining a motion for non-disclosure please feel free to contact us.
What is the law of Self-defense in Texas
In the wake of the George Zimmerman/Trayvon Martin verdict there's been a lot of discussion about self-defense. Unfortunately, many of the reports in the media have been misleading, if not downright false. So to set the record straight here's the law of self-defense. The same law that applies in Waco or McLennan County, or any other city and county in Texas.
Self-defense is referred to as a "justification" - that is is defined in Section 9.02 of the Texas Penal Code as something that is a "defense to prosecution". Section 9.31 sets for the general requirements of self-defense. Generally, force is justified "when and to the degree necessary to protect the actor against the other's use or attempted use of unlawful force." The individual must have a "reasonable belief that the use of force is immediately necessary.
So to start, force is justified when an individual has a "reasonable" belief. The use of force must also be immediately necessary. You can walk away and then come back and assualt someone.
There are some limits on the use of force. Those include:
- the person did not provoke the person against whom force was used
- the provocation is not strictly verbal - you can't assault someone just because they called you bad names
Under Section 9.31 the use of force is limited to the force used by the other person. For example, if someone hits you you can't pull out a knife and stab them.
There are special rules which govern the use of deadly - such as using a weapon. Generally, you cannot use deadly force unless its immediately necessary to protect against the other person's use or attempted use of deadly force. In other words, you have to reasonably believe someone is trying to use deadly force against you.
You are also authorized in using deadly force if it's necessary to prevent the imminent commission of "aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated robbery."You can also use deadly force against someone who "unlawfully and with force" enters your habitation, vehicle or place of work.
So there's the law of self-defense. The concept is basically pretty simple. You can protect yourself and others, but only to extent it's necessary. Your decision must be reasonable, which is usually where the difficulty come in establishing the defense. You have to convince jurors you acted reasonably - which is where a lawyer's skills are necessary.