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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 the Judge send me to jail even if I get probation?
The recent case of former Dallas Cowboy Josh Brent has generated a lot of discussion. Most of the discussion has focused on whether probation is appropriate in a case where a death occurred. Many have also wondered how the judge could sentence him to 180 days in jail when the jury gave him probation.
To understand the answer, you need to understand how probation works. Probation - (or community supervision) is nothing more than a suspended sentenced. You are sentenced to a term in prison or the county jail, and that sentence is suspended. Instead of going to prison or jail you are placed under supervision. If you violate the conditions of supervision then your probation can be revoked and the sentence can be imposed. In Brent's case the jury sentenced him to 10 years in prison, so if he violates probation he can go to prison for 10 years.
Once you are released on probation, you are under the supervision of the probation department. The probation department basically works for, and reports to the judge. The judge is the person who ultimately decides whether you have complied with the conditions of probation, and if not, what sentence to impose. In addition to adjudicating violations, the judge also has the authority to impose the conditions of supervision. Most of those conditions are fairly standard, such as staying out of trouble, reporting regularly, and working or going to school. Some conditions are tailored to the type of offense; for example, anger management classes are often required in assault cases. The judge can also order you to receive treatment, such as drug or alcohol counseling.
One of the conditions of probation a judge can impose is time in jail. On the surface that doesn't appear to make a lot of sense since your sentence is being suspended. However, the theory is that some time in jail is necessary to make sure the person realizes how serious the case is. The maximum amount of time the judge can impose is 180 days, which is what was assessed in Brent's case.
There are two important aspects of time imposed as a condition of supervision. The first is that it is day for day - so if you are ordered to serve 30 days, you will spend the whole 30 days in jail. The other aspect is that you do not receive credit for the time in the event your probation is eventually revoked. Since it's not part of the sentence but is a condition of probation, you are not entitled to credit against any sentence that may be imposed.
You might wonder whether this applies to plea bargains, and it does. Most plea offers involving probation recommend that probation is granted, and may even recommend specific terms of probation such as attending certain classes. However, the judge is not limited to those, and can impose any condition he/she believes appropriate. More than a few defendants have been surprised by having to go to jail, instead of directly to the probation department after sentencing.
Most people think that if they receive probation they will walk out of the courtroom and start their probation. As you can see, that is not always the case. Fortunately, lawyers who regularly appear before a certain judge generally know the type of cases where jail time may be imposed and will discuss that with you.
Does Texas have an offense of driving under the influence?
The main criminal offense covering intoxicated drivers is driving while intoxicated - or DWI. That's different from many states, where the offense is driving under the inluence - or DUI. Texas does have an offense of DUI, but it only applies to minors.
If you're a minor - which means you are under 18 - you commit an offense if you operate a motor vehicle (or watercraft) while having any detectable amount of alcohol in your system. Basically you can't drink and drive; which is the only time the phrase "don't drink and drive" has any validity. The state doesn't have to prove you are intoxicated, simply that you have alchohol in your system.
So how do they prove you have "a detectable amount" of alcohol in your system? Police rarely take minors in for a breath test, or blood test, unless they believe the minor is intoxicated. Instead, the decision to charge you generally is based on the odor or smell of alcohol on your breath. Not exactly scientific, but that's a separate discussion.
The offense of DUI is a class C misdemeanor, which is similar to a ticket. However if you've been convicted of the same offense twice before, the punishment is increased to a class B misdemeanr, and you can be sentenced to up to 180 days in the county jail. In addition to the fine, community service is mandatory; 20 - 40 hours if it's a first offense, and 40-60 hours if you've been convicted before.
In addition to a fine and community service, there is also a mandatory alcohol awareness class that must be completed. If you don't complete it within 90 days (unless extended by the court) your license will be suspended for a period up to 6 months, or if you don't have one prevent you from getting one for up to six months.
As you can see, just because you aren't going to jail doesn't mean DUI is a minor offense. Before you go in and plead guilty make sure you know the consequences - and the alternatives.
Can I travel out of state if I'm on bond?
Whether it's to get away for a short vacation or to spend time with family for holidays, a lot of people travel. For many people, their family is close by, but for some, they may be in other states. So it's not unusual to have clients ask if they can travel out of town, or out of state, while their case is pending.
Can you travel while your case is pending? The answer is, it depends - big surprise right? Most felony bonds in McLennan County have conditions - one of them may be that you do not travel out of the county. If your bond has that condition then you have to get the permission of the judge - in writing - to travel. Most judges will provide that for special situations, but you have to ask.
Misdemeanor bonds on the other hand generally do not have similar conditions. Unless it's a DWI case or assault case, you may not have any conditions on your bond. That doesn't mean it's alright to go wherever you want. If you used a bonding company, you signed an agreement with them; unless you want to go back to jail you need to make sure you honor it. Most bonding companies want to know if you are going somewhere so they know where to find you if they need you. That means you need to check with them and make sure they are okay with your trip.
We've had clients whose job requires them to travel. That's generally not a problem, but it does need to be approved by the judge - if necessary - and the bonding company.
The bottom line is that before you pick up and leave, you need to make sure it's alright to do so. If not, it may be the last trip you get to make for a while.
Will my case go to trial on that date it is set?
Most people understand that there are far more cases on the dockets of most courts than can be tried. That means that on any given week there may be as many as 25-30 cases set for trial. Some of those may end up pleading guilty, but there are usually several defendants who are want to go to trial. The way those cases are handled varies among the courts.
In McLennan the two courts that handle felony cases - the 19th and 54th District Courts - handle cases basically the same. Cases are numbered from one until they run out of cases - generally starting with the person who has been in jail the longest. The number one case is the one that will go to trial unless the court either grants a continuance, a plea agreement is reached, or the case is dismissed. That means that theoretically, everyone set for trial that week has to be ready to go.
Even though there may be 25-30 cases set for a trial, the fact is there are only a limited number of prosecutors in each. While they might be able to get 2 or 3 cases ready, they are not going to get them all ready. No only is it not practical, its also not very effecient because you would have to keep issuing and re-issuing subpoenas if the case was not reached. That usually means that if your case is down the list, there is no realistic chance you are going to trial. It also means that you may end up getting ready for trial more than once.
It may seem like a waste of time to set more cases than you can get ready for and try. However, it does serve a purpose. One is to keep the case on the docket, so it can eventually end up at the top. The other is to encourage resolution. If the case is going to be a plea - and and agreement has been worked out - the existences of a trial settting may be incentive to go ahead and get it done.
While lawyers understand how the system works, it's always confusing for clients. Your lawyer should keep you advised about all the court settings, and the likelihood of going to trial. While there is always stress involved, knowledge about how the system operates and how it impacts you can at least lessen some of that stress.
What's the difference between a Nolo Contendre Plea and a Guilty plea?
The recent plea of former judge Ken Anderson in Williamson County has many people wondering what a "Nolo Contendre" plea is, and how it is different from a guilty plea. There are several differences, although in terms of what happens to you there's no real difference.
With a guilty plea, you admit you did what you are charged with, and are guilty of the offense. With a Nolo Contendre plea you don't admit guilt; instead you admit the State has enough evidence to convict you; basically, you concede that if you went to trial you would be convicted.
So why would you plead Nolo Contendre instead of Guilty? The biggest reason is that a defendant doesn't want to admit guilt; there's some distinction in most people's minds between pleading guilty, and conceding you would be convicted if you went to trial. Legally, a Nolo Contendre can't be used against you in a civil trial, although that's rarely an issue.
Some people will try to claim they weren't convicted after a nolo contendre plea but that's not true. The judge still finds you guilty - the end result is no different from when you plead guilty, or go to trial and are convicted.
The policy on nolo contendre pleas differs among different jurisdictions. Some judges will not accept a nolo contendre plea; they may not accept them in all cases, or in only a few types of cases, such as sexual assaults and cases where probation is being offered. Generally, that is more likely to happen in felony cases than in misdemeanor cases. Some District Attorneys may not offer a plea bargain if the defendant is going to plead guilty.
Rarely do you get any benefit out of entering a nolo contendre plea as opposed to guilty. The opposite may instead be true - you may jeopardize an otherwise good deal that has been worked out. As with most things, this is something that should be discussed with an experienced lawyer who is knowledgeable of how things work in your type of case. Contact our office if you want to know what your options are.
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.
How long do I have to wait to obtain an order for non-disclosure?
One of the first questions we ask when someone wants to file a motion for non-disclosure is, "when were you discharged from supervision". The reason is that there are waiting periods for most offenses. The time starts from when your probation expired, or you were discharged from supervision.
For felony offenses it's pretty straightforward - you have to wait 5 years. For misdemeanors, it's more complicated. There's either a two-year waiting period or no waiting period. The two-year waiting period applies to the following offenses:
- Abuse of corpse
- Advertising for placement of child
- Aiding suicide
- Cruelty to animals
- Deadly conduct
- Destruction of flag
- Discharge of firearm
- Disorderly conduct
- Disrupting meeting or procession
- Dog fighting
- False alarm or report
- Harboring runaway child
- Hoax bombs
- Indecent exposure
- Interference with emergency telephone call
- Leaving a child in a vehicle
- Making a firearm accessible to a child
- Obstructing highway or other passageway
- Possession, manufacture, transport, repair or sale of switchblade knife or knuckles
- Public lewdness
- Silent or abusive calls to 9-1-1 service
- Terroristic threat
- Unlawful carrying of handgun by license holder
- Unlawful carrying weapons
- Unlawful possession of firearm
- Unlawful restraint
- Unlawful transfer of certain weapons
- Violation of protective order preventing offense caused by bias or prejudice
If you were convicted of any other misdemeanor offense - and it's an offense eligible for a non-disclosure order - there is no waiting period. That means that the day you are discharged from probation you can file a petition for non-disclosure.
For more information on which offenses are not eligible for a non-disclosure order, you can check this article.
As you can see, when to file a motion for non-disclosure is not an easy question to answer, which is why you should talk with a lawyer who is knowledgeable in this area. If you have a case where you think you might be eligible for a non-disclosure order we will be happy to talk with you about that.
Are there any limits on obtaining an order for non-disclosure?
If you look at some legal websites you might think you can clear your record any time you are placed on deferred adjudication, and successfully complete it. That is far from the truth. Not only are there some offenses that are are not eligible for a non-disclosure order, but a prior conviction for certain types of offense will prevent you from obtaining the order.
The following offenses are not eligible for an order of non-disclosure:
- Indecency with a child
- Sexual assault
- Aggravated sexual assault
- Prohibited sexual conduct (incest)
- Aggravated kidnapping
- Burglary of a habitation with intent to commit any of the above offenses
- Compelling prostitution
- Sexual performance by a child
- Possession or promotion of child pornography
- Unlawful restraint, kidnapping, or aggravated kidnapping of a person younger than 17 years of age
- Attempt, conspiracy, or solicitation to commit any of the above offenses
- Capital murder
- Injury to a child, elderly individual, or disabled individual
- Abandoning or endangering a child
- Violation of protective order or magistrate's order
- Any other offense involving family violence
You also can't obtain an order of non-disclosure if you have previously been convicted of one of the above offenses. This is why no lawyer should ever tell you they can obtain an order of non-disclosure for you before they find out your prior history criminal history. Just because you're eligible based on your current conviction, a prior conviction might make you ineligible.
You will see that one of the offenses listed above is family violence assault. We frequently have people requesting an order of non-disclosure where they were placed on deferred adjudication for an assault involving family violence. Unfortunately, there is nothing you can do if you were placed were on deferred adjudication for that offense. You need to know that when you enter your plea - and understand that you aren't getting the same benefits from receiving deferred adjudication as other defendants.
Another thing that will keep you from obtaining an order of non-disclosure is getting convicted of - or placed on deferred adjudication - for a subsequent offense. Sometimes people will wait to obtain an order of non-disclosure, and not get it as soon as they are eligible. They then slip up and end up with another charge. Unfortunately, they have lost their chance of getting the order for the first case. However, if the new offense is not one of the offenses listed above, you can obtain an order of non-disclosure for the second case.
Before you go to the trouble of filing a petition for non-disclosure make sure you are familiar with the statute or talk with a lawyer who is. There's no reason to waste your money if you aren't going to be eligible. If you need advice about whether you qualify, contact our office for an honest, experienced opinion on your case at (254) 296-0020 or by filling out the contact form on this site.
How many times will I have to show up in court?
While it isn't the first question most people have, at some point you want to know how many times you are going to have to take off from work and appear in court. Like most things, the answer is it depends.
Generally, you are going to have show up to court fewer times for less serious charges. After you are arrested you are given a court date in McLennan County. That is an appearance date and is mainly for tracking purposes. If you hire a lawyer before this date, you don't have to show up. Instead, your lawyer will call in and enter an appearance for you. Depending on what you have discussed, they may put the case on the trial docket or the plea docket. Those designations are not final since you usually don't know what you are going to do at this point.
If the case is set on the trial docket you will get a pre-trial date. That is a date where the court takes announcements, and either assigns a trial date, or schedules a date to hear pre-trial matters. If an agreement is reached the case can also be set for a plea. Many times the case will be passed, and you will receive another pre-trial date. You do have to appear for these pre-trial hearings. Sometimes there may be only one, while in other cases there may be multiple hearings.
If the case is set for a plea, you will get a court date - which is always on Thursdays. Those dates are often re-set, but you don't have to be present for that.
Some people only have to show up for court one time - when they enter a plea. Others may have to show up several times if the case is set on the trial. However, rarely will you have to show up more than 3-4 times.
As you might guess, felonies are entirely different. Your obligation to show up in court doesn't start until your case is indicted. Once that occurs you are given an arraignment date. You can waive that by signing a written document and avoid having to show up in court. Once that is done, the case is set for trial, and you will get a date for an announcement docket. The purpose of that hearing is to ensure that your lawyer and the district attorney talk about your case and see if it can be resolved. If you reach an agreement, it will be set for a plea. If not, it will be set for trial. Many times you need more time, and the case will be set for another announcement docket. As of the time of writing this post (October 31, 2013) you don't have to appear for these dockets. Instead, your lawyer will take care of that, and submit the necessary form.
If the case is set for a plea, you will have to show up for that. If the plea agreement is for probation, you will not be sentenced then. Instead, a pre-sentence report will be ordered, and you will be given a new date to come back for sentencing.
If the case is set for a trial, you will get a pre-trial date. You must show up for this. At the pre-trial, the case will either be numbered for trial or passed. If it is numbered for trial, a status hearing will be set for the following week. The process here varies according to which court you are in. If you are in the 19th District Court you don't have to show up for the status hearing. If your case is not reached when it is set for trial and another pre-trial date is set you also don't have to show up for that. If your case is in the 54th District Court though, you must show up for all your court settings.
Even if your case is set for trial it is probably not going the first time it is set. For the most part, priority is given to the oldest cases and the people who have been in jail the longest. It is not uncommon for cases to be set on the pre-trial multiple times. If you are in the 54th, that means you may have to multiple court appearances - sometimes as many as 10 or more.
CAUTION - The above information is specific for McLennan County and Waco. Each county handles their docket differently, and as you can see, even courts in the same county may handle their docket differently. If you are in another county you need to talk to your lawyer to make sure you understand how the system works there.
No matter whether you have to show up in court once, or multiple times, it is EXTREMELY IMPORTANT that you show up each and every time - and ON TIME. If you don't show up or show up late, your bond can be forfeited and you may spend the rest of time in jail while waiting for your case to be reached.
When can I get an evidentiary hearing?
One of the more common questions I get is whether you can get an evidentiary hearing. The question usually comes up in cases where the evidence is weak. Sometimes clients simply want a hearing where the state has to show all their evidence. Unfortunately, the answer in both situations is no.
Many people believe that a judge can dismiss a case if he or she believes there is insufficient evidence. They do have that authority, but not until after the trial starts. Then they can grant a directed verdict after the State rests. Before the trial starts though, a judge cannot force a prosecutor to dismiss a case. That's a hard concept for some people to accept.
A judge's role is to basically referee the trial, and the proceedings leading up to trial. If there is evidence that needs to be suppressed, the judge will make that decision. The judge can also make decisions on whether certain evidence can be disclosed, or tested. The judge will also make pre-trial rulings that control how the case will be presented. At no time, however, is the judge presented with all the evidence the State has.
A judge in Texas also cannot force the State to show all their evidence (Starting on January 1, 2014, the State had to begin to provide offense reports to a defendant's lawyer). They can order the State to allow the defense and their experts to look at the evidence, but the actual evidence remains with the State.
There are a lot of differences between criminal and civil trials. Even though life and liberty are at stake, discovery is more limited, as is the judge's control over the case. That's something I've never understood - and after more than 37 years as a criminal defense attorney, I'm sure I never will.
When should I get a lawyer when I may be part of an investigation
Most drug cases are relatively straightforward; the police find drugs on you, or in your car or house, and you get charged with possession. If you have a large quantity, you might get charged with possession with intent to distribute. Occasionally though there may be a lengthy investigation.
The police may decide to investigate further in several situations. Sometimes a person will be arrested with a small amount of drugs. Instead of making an arrest for a minor offense, they may offer the individual a chance to "work his case out". That involves providing them with information on where he's getting his drugs from. They may even use the person to make a controlled buy, under police surveillance. They might then arrest that person and continue doing the same thing, working their way up the chain.
If they are going to file charges, they may wait until they've gone as far as they think they can go.
When the police suspect an organization is involved they might try to put together a conspiracy case. Usually those are federal investigations, since it is far easier to establish a conspiracy in federal court than it is in state court. It's not uncommon for those investigations to last months, and sometimes longer.
Sometimes people will come talk to me after they've been questioned, or suspect they may be the target of an investigation. There are a number of questions people have, such as should I cooperate, and do I need a lawyer. As you might guess, my advice is to get a lawyer sooner rather than later. The obvious reason is that you don't want to do or say anything that will help the State make a case against you. Another reason is to get some advice about how much trouble you may be in. Most lawyers who have experience in drug cases can figure that out.
There's still another reason to get a lawyer early. Sometimes people think they can talk their way out of the situation; all they have to do is explain things. Trust me - that rarely works. Instead, you usually end up digging a hole for yourself. There may be information the police need to know though so they will have a complete picture. A lawyer will know the best way to present it - or even if it's something you want to present.
The worst thing you can do in this situation is sit back and hope you don't get arrested. By then it's too late - and you really do need a lawyer.
What should I do if I'm arrested while on probation in Waco, Texas
Even if they didn't tell you, you already know that you're not supposed to commit another offense while on probation. Every order granting probation (or community supervision) in Waco, Texas contains the condition that you commit no offense against the laws of the State of Texas, any other state or even the federal government. That even includes minor crimes such as speeding or other traffic offenses.
So what happens if you did get arrested for a new charge?
There are several things you need to know. The first is that it really makes no difference whether you are guilty or not. While that will be an issue later, it's not something that's important now. Every probation order I've ever seen has the condition that you report an arrest within a certain amount of time - generally 48 hours. That means that if you don't tell your probation officer you were arrested - even it's a bogus charge - you've committed a probation violation. So do it!! The worst thing you can do is nothing, and have your probation officer call you up and ask about it.
So what happens after you tell them you've been arrested, or they find out on their own? It depends on a lot of factors, such as how long you've been on probation, what you've done, and how serious the charge is. The options the probation officer has may be limited by the nature of the charge and the official policy. In many places, an arrest for a felony requires the officer to request a motion to revoke probation. In other places, and in other situations, they may handle it within the probation system - such as modifying the conditions of probation to include additional classes or counseling, or even weekends in jail.
Most people are worried about whether they will be arrested if they go in and report an arrest. The short answer is not usually. A probationer is generally not arrested unless there is a warrant for your arrest. To obtain a warrant the probation officer will submit the case to the District Attorney's office, who will file a motion to revoke probation and request a warrant from the judge. That takes some amount of time, which means a warrant may not be issued for several days - or several weeks, depending on the practices of where you are.
If an arrest warrant is issued, you will be taken to jail, and have to post bond to be released. Generally a bond amount is set when the judge issues a warrant. In some cases, the judge may deny bond - especially if the arrest is for a serious offense. Your probation officer may or may not tell you a warrant has been issued. If you've always been cooperative with them they will usually let you know so you can make arrangements to post the bond. In other cases, they may just wait until your next reporting date and have you arrested at the office.
You might wonder what happens if the arrest is not justified, and you aren't guilty of the new offense. If a motion to revoke is filed you will have a hearing, and have an opportunity to present evidence that you didn't commit the offense. But remember, they have to prove the offense beyond a reasonable doubt. The burden is the preponderance of the evidence, which is a much lower burden. That means that if you couldn't be convicted of the new charge, your probation may still be revoked.
While a new arrest is not a good thing, the worst thing you can do is ignore it. It's not going away, and your probation officer will always find out about it. It's better they find out from you. While it's difficult to do that, it's something that has to be done.
The best advice - hire a lawyer
Time is critical in revocation hearings. You may have a hearing scheduled within a few weeks of your arrest. That means it's important to do something fast, which includes hiring a lawyer. An experienced criminal defense lawyer can help with securing a bond in some cases, or negotiating a resolution with the District attorney's office. They can also help you understand what you are looking at. In McLennan County, all violations are taken seriously. If it's serious enough to get a warrant, you definitely need to talk with a lawyer to understand your options. Don't wait until its too late!
If you are on probation or community supervision in McLennan County, or any of the surrounding counties such as Bell, Hill, or Bosque give us a call at 254-296-0020 and see if we can help.
How do you know whether you committed an assault, and if so how serious is it?
Assault in Texas is a unique offense because it encompasses charges that can be extremely minor, to conduct that causes serious bodily injury or even death.
Assault is defined in Section 22.01 of the Texas Penal Code. As with many offenses, it can be committed in several different ways. Those include:
- intentionally, knowingly or recklessly causing bodily injury to another, including one's spouse
- intentionally or knowingly threatening another with imminent bodily injury, including one's spouse
- or intentionally or knowingly causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative
That basically means that you can commit an assault by either causing bodily injury to another or threatening imminent bodily injury to another. An offense committed in either of those two ways is a class A misdemeanor.
Since you commit an assault be either causing or threatening bodily injury, you have to know how bodily injury is defined; it's not the understanding of what most people have when they refer to bodily injury.
Bodily injury is defined in Section 1.07 of the Texas Penal Code as "physical pain, illness or any impairment of physical condition". So basically if you hit someone and they say it caused them pain, you have committed an assault. The State doesn't have to prove an actual physical injury - such as a bruise, cut, abrasion or broken bone. In fact, assaults can be proved without any actual physical evidence at all.
The last way to commit assault is surprising to most people. You commit an assault if you physically contact someone and you either know or should reasonably believe that the person will regard the contact as offensive or provocative. So if you grab someone in a club or in public, that could be an assault. This type of assault also includes contact where there was no "bodily injury". So if you get in an argument and shove someone out of the way, that could be an assault.
This last type of assault - offensive physical contact - is often referred to as a "Class C" assault. That's because it's a class C misdemeanor. You can't be sentenced to jail for such offenses, but you can be fined.
While assault is generally a misdemeanor, it can be raised to a felony in some situations. For more information on the difference between simple assault and aggravated assault, you can read this post.
If you have been charged with assault in Waco, Texas or the surrounding areas, and need an attorney, contact our office to schedule an appointment.
What happens if I can't afford to pay my surcharges?
Many people are surprised to learn that additional fees are imposed on drivers who commit certain offenses, or have their licenses suspended. The fees are in addition to any fines or punishment that is imposed. These are called surcharges, and generally are $1,000 per year.
It took a while for the legislature to recognize what everyone told them at the beginning - a lot of people can't afford the surcharges. If they can't pay the surcharge, they can't keep their license. Many have to drive to make a living, and they are going to do it whether they have a license or not. The result is that you have a lot of unlicensed - and uninsured - drivers running around.
The legislature has finally recognized that there needs to be a way to provide some relief for people who simply cannot pay the surcharges. They authorized the creation of an amnesty program as well as an indigency program. The amnesty program was aimed at individuals who were in default on payment of their surcharges. DPS was authorized to reduce the surcharges to 10% of the total amount in default, not to exceed $250.00. You can also get your license back while you are making payments.
What if a surcharge is imposed and you can't afford to pay it? The Indigency Program allows the amount to be reduced to 10% of the amount due, not to exceed $250. You are eligible if you are at or below 125% of the federal poverty level. Those amounts can be found here. This is the table for 2018 according to the US Department of Health and Human Services:
2018 POVERTY GUIDELINES FOR THE 48 CONTIGUOUS STATES
AND THE DISTRICT OF COLUMBIA
Persons in family/household Poverty guideline For families/households with more than 8 persons, add $4,320 for each additional person. 1 $12,140 2 16,460 3 20,780 4 25,100 5 29,420 6 33,740 7 38,060 8 42,380
You apply for the Indigency Program by filing a sworn affidavit. You can find the application form at https://www.txsurchargeonline.com/Indigence.aspx. Simply download the form, sign it before a notary public, and send it in along with the supporting documents. According to DPS, decisions are usually made within 14 days.
If you qualify, make sure you take advantage of this program. Instead of having to pay $1000 you can get by with only paying $100.00. That's definitely too good to pass up.
How important is the DWI video?
Almost every police car in Waco - and everywhere else in Texas - is equipped with recording equipment. It is usually activated when the officer decides to stop someone and is not turned off until they arrive at the jail if an arrest is made. When an officer suspects someone of driving while intoxicated, they perform a series of tests called Field Sobriety Tests. How you perform has a lot to do with the ultimate disposition of your case.
Generally, the video is not something you have a chance to review until after charges are filed. In most jurisdictions, the video is provided as part of discovery. Some places will let you make a copy - McLennan County is one of those places - while others will only let you review them in the District or County attorney's office. Hill County is one of those places.
I've had a lot of clients tell me they did really well on the sobriety tests. In fact, most people think they did great. The video supports some, while for many the video shows the complete opposite. After reviewing the video - or getting a description of it - the first question is usually how important it is going to be.
The fact is that the video is the most important piece of evidence in most cases. The better you perform, the better your chance of getting the case dismissed, or obtaining a not guilty verdict. Police reports in most cases read almost exactly the same. "The suspect had bloodshot eyes, and the odor of alcohol on their breath." When describing the field sobriety tests they set out everything the person did wrong - and never mention what they did right. Many times the descriptions are grossly exaggerated; when you read them you wonder how the person made it through without falling on their face. The flip side is also true - if you look really bad on the video there may not be much you can do but make the best deal you can.
There are many videos where the suspect appears to do everything well. Those are the cases where you can use the video to prove that you weren't intoxicated. It's even better when observations the officer put in the report don't show up in the video.
So what if your video is horrible? There still could be some hope. Before an officer can stop you they must have a reasonable suspicion that you've committed some offense. If they don't have that, everything that results from the stop - which would include the video - would have to be suppressed.
That's why you can't make a decision solely on the video. Instead, your lawyer must look at everything before advising you on how to proceed. Which also means you must have a lawyer who knows what to look for.
Are there time limits for filing criminal charges?
This week in Waco the State is prosecuting a murder case where the murder happened 18 years ago. When some people see a case like this, it's not uncommon to wonder how long the State has to file charges against someone. There are time limits - which are different according to the type of case it is. As you would probably guess, the more serious the charge, the longer the State has to file it.
What governs the time for filing charges is the Statute of Limitations. In Texas, that is found in Chapter 12 of the Texas Code of Criminal Procedure. Art. 12.01 addresses the time limits for felonies. For some offenses, there is no time limit. That includes murder and manslaughter, as well as most sex offenses where the victims are children.
There is a 10 year limit for certain types of theft as well as forgery, injury to the elderly or a disabled person, sexual assault and arson.
Financial offenses such as misapplication of fiduciary property, or property of a financial institution, securing the execution of documents by deception, false statements to obtain property or credit, money laundering, credit card or debit card abuse and use or possession of identifying information are all subject to a seven-year limitation.
Most other offenses are subject to a five year limitation period.
As you can see, there are several different periods, along with a number of rules concerning how you calculate time. No lawyer I know of has that list memorized. However, you should know enough to know when should you check and see if its an issue.
Misdemeanors are little simpler. The limitation period is two years.
Limitation does not come up very often because most cases are prosecuted fairly promptly. However, when it is, it must be investigated and pursued. If you are outside the limitations period - and there are no exceptions - the case must be dismissed. It makes no difference how guilty you may be.
As with any legal issue, you must rely on the advice of a competent criminal defense attorney. Time periods change, and there are exceptions which may apply in any case. You need a lawyer to investigate and review the case and determine whether it is something you might be able to take advantage of.
Do crime labs make mistakes in testing drugs?
Many people assume that testing for drugs is a relatively straightforward process. We envision a machine where you put something in, and it tells you yes or no. The truth is, testing is not as simple as that. A number of processes are involved, which means mistakes will be made. Our Texas criminal defense firm has handled many drug charge cases where mistakes could have cost our client time in jail and much more.
It is probably impossible to determine how often mistakes are made. Even if it's a small percentage of cases, if it's your case the mistake can mean the difference between living with a criminal record or getting the charges dismissed.
When the lab does do everything right, sometimes they determine that what was submitted was not a controlled substance. Every few weeks I see a case where someone pled guilty, only to later find out that whatever they had wasn't a controlled substance at all. Examples of that include Ex Parte Davenport-Fritchse, No. AP-77,013 (Tex. Crim. App. - 4/17/13) and Ex Parte Gainus, WR-79,346-01 (Tex. Crim. App. - 5/8/13) In the first case the defendant was sentenced to 60 days, and in the second case three years.
I still don't understand how that happens. In Waco and McLennan County, the District Attorney will not file a felony case without having a lab report, which would hopefully solve that problem. I would imagine a number of other counties have the same policy. It only makes sense to make sure you are actually prosecuting a crime before moving forward. Otherwise, you end up with cases like those above.
I also don't understand why a defendant would agree to do that. Were they duped, and thought they had actually had something? I realize drug dealers are probably not the most trustworthy people out there but do they sell fake stuff that often? You would think it would be pretty easy to figure out.
The lesson from all of this is to not take anything for granted. If the lab report is back, look behind it and make sure everything was done properly. If it's not, don't go forward until you have it.
Learn more about the criminal justice system in my book, Criminal Injustice - Don't Become Another Victim of the Criminal Justice System. If you find yourself in need of an experienced drug charge defense attorney, contact our office for a consultation.
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 definition of self-defense according to Texas law. 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 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't walk away and then come back and assault 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 him.
There are special rules which govern the use of deadly - such as using a weapon. Generally, you cannot use deadly force unless it's 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 to use 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 the extent that it's necessary. Your decision must be reasonable, which is usually where the difficulty comes in when establishing the defense. You have to convince jurors you acted reasonably - which is where a lawyer's skills are necessary.
Walter Reaves has over 30 years of criminal defense experience. If you have been arrested for defending yourself and need help, contact our office at (254) 296-0020.
Can I get deferred adjudication in a DWI case?
One of the most common questions I hear is whether you can be placed on "deferred adjudication" for driving while intoxicated. The simple answer is NO.
If you don't know, deferred adjudication is a form of supervision - i.e. probation. The conditions of supervision are basically the same; the difference is in what happens in the end. In regular probation cases, you will complete the period of supervision and be released. That is basically the end of it. You still have a criminal conviction, and it will still appear on your arrest record.
Deferred adjudication differs in what happens when you are originally placed on supervision. Instead of finding you guilty the court "defers" a finding of guilt. In other words, they don't find you guilty, and instead carry the case forward while you are on supervision. If you successfully complete supervision the charges are dismissed. You can then truthfully say you have never been convicted of a criminal offense. In some cases, you can also obtain an "Order of Non-Disclosure", which basically seals your record.
Unfortunately, the legislature has taken away the ability to receive deferred adjudication in a DWI case. There are a few other cases where you cannot receive deferred, but most of those are serious felonies. Chalk up DWI to influential lobbying groups.
It's important to know that a conviction for driving while intoxicated is an offense with some significant collateral consequences. The inability to obtain deferred adjudication is simply one of those.
Should I take a polygraph?
If you are the target of an investigation - i.e. a suspect - you might be asked to take a polygraph. Should you take one or not? As you might guess - since this is advice from a lawyer - the answer is it depends.
The answer usually depends on why they are asking you to do it. They might be convinced you are guilty and want you to take one and fail so they can get a confession out of you. Or they might hope to get a confession before you even take it. How do they do that? If you fail, they tell you the results and use all the interrogation techniques they have been taught - which is usually to convince you that you'll be better off - and feel better - if you just admit what you did. Some police polygraphers also talk with the person before they even take the test, and convince them they would better off confessing before they take the polygraph and flunk it.
Sometimes investigators do not know who to believe. While this situation is rare, they might want something to fall back on - which would be a polygraph. This may happen in cases where it's not clear what happened, and there are two or more people telling equally convincing stories.
The problem with making this decision is that polygraphs are not always accurate - that's why they can't be used in court. A recent story shows that one particular machine has a history of problems that have largely been ignored. That means that you might fail even if you are telling the truth. If you truly are innocent and you fail, you suddenly become a suspect.
So do you look guilty if you refuse? Maybe - but what difference does it make? The police still have to investigate and obtain evidence. If you refuse they will probably look harder. On the other hand, you also appear guilty if you fail a polygraph - and most police officers won't even entertain the idea that the test was wrong.
The decision to take a polygraph is not one you should take without talking to a lawyer. Generally, if I don't know anything about the investigation my advice is always going to be not to take one. If I'm convinced the police simply want to use the polygraph to eliminate the individual as a potential suspect I might be more inclined to recommend it; that's only if I don't think there's a possibility the investigation will re-focus on them if they fail. The decision is not one that should be made without knowing as much as you can about the evidence - both from the police and the client.
Even if you do decide to take the polygraph, who administers it is important. It is best to have it done by someone not affiliated with law enforcement. It is even better to make arrangement for the test yourself.
You probably have more questions now than when you started reading this. There's a reason for that - as I said at the beginning the answer is "it depends." You can only make the decision after knowing all the facts and evaluating the risks and rewards. An experienced lawyer is the best person to make that decision - it will be worth whatever you pay.