Attorney Justin T. Surginer http://jtslegal.com Houston Criminal Defense Lawyer Tue, 02 Dec 2014 13:00:33 +0000 en-US hourly 1 http://wordpress.org/?v=4.1.13 Busted for Driving while High: What’s Going to Happen? /busted-driving-high-whats-going-happen/ /busted-driving-high-whats-going-happen/#comments Tue, 02 Dec 2014 13:00:33 +0000 /?p=1476 It’s not like drinking, is it? After all, you don’t feel out of control, you’re perfectly able to walk and—depending on your substance of choice—your head may actually be clearer than it is when you’re clean. So why all the fuss about taking a drive while you’re high? What exactly can happen to you? Let’s clear […]

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]]> It’s not like drinking, is it? After all, you don’t feel out of control, you’re perfectly able to walk and—depending on your substance of choice—your head may actually be clearer than it is when you’re clean. So why all the fuss about taking a drive while you’re high? What exactly can happen to you? Let’s clear up the myths:

It Doesn’t Matter What (or How Much) You’ve Had

Smoking PotDUID stands for Driving Under the Influence of Drugs. It’s just as serious a charge as a DWI, and there are just as many misconceptions around being busted for DUID.

  • First, it makes no difference whether you’re under the influence of marijuana, prescription or recreational drugs, or whether you got them legally or not. If use of the substance can affect your judgment, it can bring a charge of DUI/D. And this can apply to both prescription and recreational drugs.
  • Second, research by the National Institute of Drug Abuse shows that if you use marijuana within a few hours of driving, your risk of accident is almost double that of a sober driver. The risks aren’t as high as for drinking alcohol and driving, but they are still high enough. A survey of drivers involved in accidents shows that 6.8% tested positive for TCH, which is the chemical found in marijuana.
  • Thirdly, even if you’re a licensed medical marijuana user it doesn’t mean you can drive after using, because traces of the drug can remain in your system after use.

Using drugs can affect your reaction time, your spatial sense and your perception, which are all vital to enable you to drive safely. When you drive while high, you can misjudge the distance between cars, follow too closely and be unable to stop in time. You could make unsafe turns or believe you’re traveling slower than you are, which can cause you to lose control of the vehicle.

What Happens When You’re Busted

So you’ve been pulled over for operating a motor vehicle while under the influence of drugs. What can happen to you?

  • Being Tested: Testing for drugged driving is not nearly as specific as testing for alcohol, but the Texas state law of Implied Consent means that if you’re arrested for doing anything while allegedly operating a vehicle in a public place, you’re considered to have already consented to giving specimens of your breath or blood for testing.
  • If You Refuse: You can refuse to be tested, but your refusal can be used as evidence in your trial.
  • Speaking to an Attorney: Under Texas law, you aren’t entitled to speak to your attorney before you decide whether to give a specimen or not.
  • Choosing the Specimen: Texas law doesn’t allow you to choose what type of specimen you want to give. The police officer might give you choice, but he (or she) doesn’t have to do so.

The prosecutor in a DUID case doesn’t need to prove your senses are impaired, so there’s no need for field sobriety tests to assess your speech or balance.

So, What Constitutes DUID?

Once you’ve been tested, the state determines whether to charge you based on the concentration of drugs in your blood or urine. This is measured in nanograms per liter, and the prosecutor doesn’t need to prove your sense were impaired. Just the presence of a drug such as marijuana in your system is enough to result in a DUID charge, according to Texas Statute and Code Ann. § 49.01.

Defenses

If you’re busted for driving while high, the first thing to do is to appoint a skilled Texas criminal defense attorney with experience in DUID charges. Some of the defenses he may use to get justice for you include:

  • Presenting the case that you weren’t actually driving the vehicle at the time
  • Introducing independent witnesses who state you appeared to be sober, in spite of having found drugs in your system
  • Pleading guilty to a lesser charge, such as reckless driving

None of these arguments are foolproof, but your lawyer will be able to determine if there are ways to reduce the charges and punishment.

Conviction and Penalty

If you’re convicted of DUID, the penalty depends on whether it’s your first offense or not. A first offence is a Class B Misdemeanor, which carries any or all of:

  • A fine of up to $2,000
  • Between 72 hours and 180 days in jail
  • From 24 to 100 hours’ community service
  • Suspension of your driver’s license for a year
  • Additional fine surcharges of $1,000 to $2,000 a year for three years

A second offense is a Class A Misdemeanor, which carries the same penalties up to double the quantities, and a third offense or more is a third-degree felony. This takes you into the big time, with:

  • A fine of up to $10,000
  • Two to 10 years in prison
  • Community service between 160 and 600 hours
  • Driver’s license suspension for up to two years
  • Additional fine surcharges for three years

It’s best to avoid driving if you’ve used drugs in the past 24 to 48 hours, but it if happens and you or a loved one is busted, knowing your rights and the possible outcomes can help you to face the music. A good criminal defense lawyer is your best bet for having the charges against you reduced and minimizing your punishment, while helping to protect your dignity and reputation throughout the process.

*Image courtesy of Torben Hansen

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/busted-driving-high-whats-going-happen/feed/ 0 What Happens If I Am Busted for Buying a Minor Alcohol? /happens-busted-buying-minor-alcohol/ /happens-busted-buying-minor-alcohol/#comments Tue, 25 Nov 2014 13:00:35 +0000 /?p=1470 Busted! Not a word you want to hear, but one that can happen very easily if you’re caught buying alcohol for someone under age—even if you didn’t realize they were under age. So, in all good faith you picked up a purchase for a friend who said he or she was 21, and heck, the […]

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Busted! Not a word you want to hear, but one that can happen very easily if you’re caught buying alcohol for someone under age—even if you didn’t realize they were under age. So, in all good faith you picked up a purchase for a friend who said he or she was 21, and heck, the kid looked it so how were you to know? Unfortunately, the police officer who busted you isn’t going to be interested in that argument. Here’s what to expect if you get caught buying alcohol for a minor.

How You Might Get Caught

Buying Minors AlcoholThere are many ways in which you can get caught supplying alcohol to a minor, whether the person actually drinks it or just keeps it in his or her possession. The most common ways include:

  • During sting operations, which usually make use of minors as “bait”
  • Public safety operations carried out by police officers
  • “Cops in Shops” operations, where police observe alcohol being bought and often given to minors
  • Shoulder Tap Stings

Operation Fake-Out

These are carried out by the Texas Alcoholic Beverage Commission (TABC) in collaboration with the police. Additional operations are conducted with retailers to encourage compliance with the laws, and these are:

Unless you are the minor’s parent, spouse or legal guardian and the minor drinks the alcohol in your presence, you are allegedly committing a misdemeanor, which unless there are aggravating circumstances could fall into the Class A, B or C categories according to the Texas Penal Code. Offenders in this category can either be arrested, after which they are taken before a magistrate within 48 hours, or you can receive a citation for your actions.

Some Decent Defenses Your Lawyer Might Use

The first thing you should do if you’re caught buying alcohol for a minor is to contact an experienced Texas criminal defense attorney. Your lawyer will investigate the case and determine how to mount the best possible defense for you.

Some defense arguments used successfully include:

  • Not knowing the recipient’s true age for any reason, including the possibility that the minor presented him- or herself as being of age, or that the minor provided photographic proof of identity that appeared to be issued by a relevant government agency;
  • Being unaware that the purchase contained alcohol, and
  • Serving alcohol to minors on private property, such as during a house party. This defense can work if the host was present during the event.

To mount the right defense argument for your particular case, it’s essential to use a lawyer with experience in cases of minors and drinking, or you could get a harsher punishment than you need. Whether you’re innocent or not of the allegations, you deserve to have the best representation possible. Your lawyer will work on your behalf to maintain your dignity and to ensure that you receive fair treatment by the court.

Paying the Price

The punishment for a misdemeanor conviction of this nature usually includes some or all of the following, depending on the class it falls into:

  • A sentence of up to one year in prison
  • A fine of up to $4,000
  • Community service related to alcohol education or abuse prevention

Obviously, the best method to avoid conviction on these charges is to avoid committing the offense, but if you do so and get busted it’s vital to keep your head and not make things worse for yourself. It’s important that you speak with a qualified DWI attorney right away if you have been busted for serving alcoholic beverages to minors.

*Image courtesy of Willscrlt

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My Friend Is Drinking in My Car: Am I Breaking Any Laws? /friend-drinking-car-breaking-laws/ /friend-drinking-car-breaking-laws/#comments Fri, 21 Nov 2014 13:00:33 +0000 /?p=1465 Texas laws are sneaky. Yes, it’s legal for a passenger to drink in your car—as long as it isn’t alcohol. Yes, it’s legal for him to drink alcohol as long as your car is a taxi (and, presumably, you’re a registered, licensed cab driver!) Confused? Here’s the skinny on drinking and driving, even if they […]

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Texas laws are sneaky. Yes, it’s legal for a passenger to drink in your car—as long as it isn’t alcohol. Yes, it’s legal for him to drink alcohol as long as your car is a taxi (and, presumably, you’re a registered, licensed cab driver!) Confused? Here’s the skinny on drinking and driving, even if they aren’t being done by the same person.

Open Container Law – The Basics

Driving and DrinkingTexas is one of a majority of states that has a law against having an open container of alcohol in a vehicle. If the driver is holding or drinking from it, the charges may be aggravated and escalate to a DWI or DUI. If the passenger is drinking from it, both driver and passenger can be charged with having an open container. Even if nobody is drinking from it, if the container is within reach of the driver you may be charged with an open container violation. The good news? You can’t be arrested for the infraction, only fined.

What’s an Open Container?

An open container refers to any type of alcoholic beverage that is unsealed. It could be beer, wine or spirits in a glass, cup, bottle or can, but as long as it has been opened and some has been removed or consumed, it’s an open container.

In other words, if some or all of these criteria apply, then you may have committed an offense:

  • You’re the driver or registered owner of the vehicle.
  • You’re in the vehicle.
  • The vehicle is traveling or stationary on a public roadway.
  • A container such as a glass, bottle, cup or can is in the vehicle, somewhere in the passenger area (not in the trunk, locked glove compartment or behind the last upright seat).
  • The container holds or previously held alcohol of some description. Even if the container is empty, if it has contained alcohol it’s considered an open container.
  • The container is open or is unsealed and some of the contents have been taken out.

Exceptions to the Rule

There are some exceptions to the open container law. If you’re driving a taxi, bus or limo, or your vehicle is a motor home or RV, then your passengers are allowed to drink alcohol while you’re driving. Preferably, the open container should not be within the reach of the driver, however, to avoid any police officer feeling the urge to subject you to field sobriety tests.

If you’re driving a regular car, you can have an open container of alcohol in the vehicle only if it’s locked in a glove box or in the trunk. In cars without a trunk, it must be stored behind the last upright seat.

If You’re Pulled Over

If you’re pulled over by a police officer, the first thing to remember is that he (or she) has no automatic right to search your vehicle. You have a right to privacy that prevents him from doing so without a search warrant. Of course, that doesn’t help if the open container is in plain sight of the officer, who doesn’t necessarily have to see anyone lift the container or take a drink to lay a charge.

Whatever the officer asks you to do, remember not to blow into a breathalyzer or submit to field sobriety tests (FSTs). Stay clam, be polite and remain quiet. Beyond providing your license and registration, you aren’t required to answer any questions or engage in any discussion with the officer. If you follow these 4 simple rules your chances are good of minimizing the seriousness of the charges.

Possible Defenses

If you or a loved one is charged under the open container law, it’s important to consult with an experienced Texas criminal defense attorney as soon as possible. There are a number of potential defense arguments that can be used to try and reduce your charges, or at least ensure that if convicted the penalty you get is in line with the offense.

For example, if a passenger in the rear seat of your car chooses to open a beer and drink some of it without your knowledge, you may be able to argue that you were unaware of what was happening.

Charges and Penalties

Both the charges laid and the penalties that can be expected depend on the circumstances of the offense. In Texas, an open container violation is a Class C misdemeanor. The police are required to issue a citation for it and since it’s not an arrestable offense, you can’t be locked up for it. If the offense is aggravated by circumstances such as the driver being drunk, however, it does become an arrestable offense.

*Image courtesy of Drive

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When Ninjas Attack: 5 Crazy Houston Crimes /ninjas-attack-5-crazy-houston-crimes/ /ninjas-attack-5-crazy-houston-crimes/#comments Tue, 18 Nov 2014 13:00:52 +0000 /?p=1460 Houston hasn’t always been the relatively tame, civilized city it seems to be these days, on the surface at least. It has a colorful history of crazy crimes that are almost unbelievable to read. Which is of course good for criminal defense attorneys in Texas, because it keeps us occupied when other good folks are […]

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Houston hasn’t always been the relatively tame, civilized city it seems to be these days, on the surface at least. It has a colorful history of crazy crimes that are almost unbelievable to read. Which is of course good for criminal defense attorneys in Texas, because it keeps us occupied when other good folks are being, well—good. Here’s a sampling of the kind of crazy things that have happened over the years:

Crazy Crime #1: Skull Theft

NinjaIt all started long, long ago when Houston, the capital of the Republic of Texas, was just two years old. Judging by the account of a visitor from Nacogdoches, it was a pretty nasty place to be, with head and humidity competing against the stench from piled up corpses of animals and people who died from yellow fever. Rats the size of prairie dogs plagued the townspeople in town, while panthers and wolves plagued them outside.

The crazy crime of the time isn’t that two “rowdy loafers,” one of which was Davy Jones of battle fame, were hanged for various killings. It’s that honorable citizens dug up their bodies afterwards, cut off their heads and examined their skulls and brains for signs of bad character! And they were never prosecuted for it, either. When they were done, the skulls were buried in an unknown spot and perhaps never recovered, to this day.

Crazy Crime #2: House of Horrors

More nasty than crazy, the original crime was the killing of three adults and two children in 1910, after a party held in the home one evening. The chief suspect was a man thought to be in love with the wife, who had been seen hanging about after the killing but before the bodies were discovered. Although he was arrested, he seems to have been let off the hook because he later fathered a child, which couldn’t be done from prison in those days. So likely he had an excellent Texas criminal defense attorney or someone else was found guilty and it was just never recorded.

Crazy Crime #3: Candy Man in the Making

Most Texans know about the murders committed by “Candy Man” Dean Corll. However, few know how close Houston might have come to having a second, similar situation. Bill List, former convict and self-made trailer rental king, built himself a monstrosity of a home on Galveston Bay in the 1970s. By 1984, he was entertaining male hookers and street kids on a regular basis, who would have to submit to all sorts of weird sexual demands if they wanted to keep the roof over their heads. Eventually, his head was blown off by a particularly irate former street kid named Smiley.

What makes this case extra weird was that Bill List’s estranged daughter Deborah Thornton was pick-axed to death during a sexual killing spree by Karla Faye Tucker, a Houston answer to Bonnie and Clyde.

Crazy Crime #4: Ninja Shooting

Back in December of 2012, an 18-year-old man was shot in a convenience store’s parking lot by a ninja. Well, the suspect was certainly impersonating a ninja, because he pulled his shirt up over his face to cover it! A newspaper report of the incident reckons he couldn’t have been a real ninja because ninjas don’t use guns, and besides, a real ninja would never have been caught on tape. But that doesn’t mean ninjas should act like ninjas, right?

Crazy Crime #5: Tattooed Toddler Stabber

Who on earth stabs a toddler in the back? Perhaps someone who thinks the kid is an alien in disguise? It’s difficult to guess what was in the mind of tattoo-faced, 21-year-old Jose Guillermo Molina when he walked up to a 3-year-old boy in a Houston apartment complex play area in April this year. He grabbed the toddler, threw him on the ground and knelt on his back. Then he began stabbing him with a kitchen knife. Luckily the toddler wasn’t badly hurt, needing only two stitches from the hospital.

The checkered past (and present) of our City’s criminal justice system makes for good entertainment sometimes, but the truth is that where a concentration of people live, crime is going to happen. It isn’t always premeditated, nor are the crimes always rational and often, it’s only with the help of an experienced criminal defense attorney that the real story comes to light. Otherwise, we’d still be living in the dark ages.

So if you or a loved one is accused of a crime, whether it’s crazy or not, the first thing you should do is to find yourself a lawyer who can represent you and walk you through the trial.

*Image courtesy of Jeyhun Pashayev

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What Kind of Evidence Do They Collect for Assault? /kind-evidence-collect-assault/ /kind-evidence-collect-assault/#comments Fri, 14 Nov 2014 13:00:55 +0000 /?p=1446 The term “assault” takes on several different definitions according to the court: Felonius assault is an unlawful attack that causes injury to another person and typically creates a need for immediate medical attention Simple assault involves no weapons, and the injury to the other party is typically minor Aggravated assault involves the use of a […]

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The term “assault” takes on several different definitions according to the court:

  • RapistFelonius assault is an unlawful attack that causes injury to another person and typically creates a need for immediate medical attention
  • Simple assault involves no weapons, and the injury to the other party is typically minor
  • Aggravated assault involves the use of a weapon, such as a gun or knife, with enough force to cause serious injury
  • Physical assault is the term for grievous bodily harm, which could result in the death of the other person
  • Sexual assault is defined as the use of force against the victim’s will, such as in cases of rape, molestation or other offenses
  • Verbal assault involves no physical harm, but could result in mental or psychological injury to the victim

Collecting Evidence

As part of the investigation for assault and other crimes, police may seek entry into your home or workplace looking for evidence. It’s not unusual to have investigators confiscate computers, hard drives, printers (which often have a record of print jobs), scanners and other technology.

Depending on the nature of the assault, the police also seek out weapons or spent ammunition, blood stains, fingerprints, examples of torn clothing or damaged vehicles and other material evidence that may be used in court.

As a defendant in an assault case, such forensic evidence helps determine whether you acted in self-defense, or had the consent of the plaintiff (in cases of martial arts or wrestling mishaps, for example), or were reasonably unaware that your actions could cause harm – all considered defenses by the court.

Sexual Assault

Victims of sexual assault range in age from infants to people in their nineties – male and female. Not all assaults are reported to the police, particularly if the accused is a spouse/partner or relative of the victim.

In a case of sexual assault, investigators turn to DNA for evidence. In the immediate aftermath of an alleged attack, victims of sexual assault are advised to avoid showering or bathing, using the restroom, combing hair, changing clothes or cleaning up the crime scene – anything that may compromise the collection of DNA.

“It’s important that law enforcement and investigators receive special training on the handling of DNA evidence to avoid contamination or destruction,” notes the Rape, Abuse & Incest National Network. “DNA evidence can be contaminated, for instance, if it comes into contact with another person’s DNA, or is exposed to heat, humidity, bacteria and other environmental conditions.”

As part of the investigation, the victim is subject to a forensic medical exam at a hospital or other healthcare facility. Such an exam is not required (meaning the accuser can accept or decline the examination), but is considered a vital step – not just to collect DNA evidence but to determine if the alleged victim is suffering from any additional injuries or disorders tied to the assault.

The investigators request a complete medical history of the victim, and then conduct a head-to-toe examination which includes an internal exam. The evidence collected here may include blood, urine or hair, plus signs of struggle such as bruises or scrapes. Undergarments are collected along with other clothing.

Evidence is stored in a package known as a “rape kit,” which is kept by the medical examiner until it is taken by the law enforcement team or crime lab.

Accused of Assault?

If you are accused of or arrested on charges of aggravated, physical or sexual assault, it is important to seek out highly trained legal representation for your case. Call on an attorney with prior defense experience and be prepared to answer many challenging questions.

*Image courtesy of Sascha Kohlmann

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Counterfeit Money: Am I Going to Jail? /counterfeit-money-going-jail/ /counterfeit-money-going-jail/#comments Tue, 11 Nov 2014 13:00:53 +0000 /?p=1439 Can you go to jail for counterfeiting? Yes – or no – depending on the scope and details of your actions. Counterfeiting, which literally means one thing imitating another, is the term most often used when referring to phony currency and coins, though it also refers to material items like those “fake Gucci” designer purses […]

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Can you go to jail for counterfeiting? Yes – or no – depending on the scope and details of your actions.

Counterfeiting, which literally means one thing imitating another, is the term most often used when referring to phony currency and coins, though it also refers to material items like those “fake Gucci” designer purses often sold by street-corner vendors.

Retailers and individuals are defrauded when they are passed counterfeit money or buy unauthorized reproductions of items. And, yes, it is against the law to create or intentionally pass counterfeit cash and merchandise.

Counterfeiting is a federal crime, and investigations will be handled by the U.S. Secret Service. You will definitely do time in prison if convicted of such a crime.

Counterfeiting Laws

Counterfeit MoneyThe laws governing counterfeiting are not limited to currency or material goods. According to Criminal Defense Lawyer, federal law also counts as fraud the recreation of items including:

  • Documents issued by insured credit unions, land banks and the FDIC
  • Bonds, bids, contracts, proposals, public records and affidavits
  • Documents pertaining to imports and the collection of customs duties
  • Federal court documents
  • U.S. postal stamps and meters

A Charge of Counterfeiting

If you are accused of creating counterfeit items, from money to handbags, the investigation will extend into your home, where evidence will be confiscated, including your computers and hard drives, printers and scanners. If found guilty of manufacturing phony goods and currency, you could face a federal prison sentence of up to 20 years in prison and fines reaching to $250,000.

You could also be guilty of a federal crime if you knowingly pass counterfeit money or sell counterfeit goods, even if you did not create the items. Just as in the case of producing unauthorized materials, the penalty for passing phony cash or goods with the intent to defraud – the crime could be categorized as forgery or fraud or a theft-related offense – carries a possible 20-year prison sentence.

What If You Didn’t Know?

Counterfeit money can be difficult to tell from the real thing, and it’s safe to assume that many people unknowingly pass this cash when they receive it as change or get it from another person.

Such people are not necessarily guilty in the eyes of the law, and you may not go to jail. But if you are caught passing phony money, you must have a solid story to tell the court to prove you had no criminal intent. “As with all criminal charges, the prosecutor must prove every element of a crime beyond a reasonable doubt in order to obtain a conviction,” notes Criminal Defense Lawyer. “In counterfeit currency cases, however, lack of knowledge and intent is perhaps the most commonly raised defense.”

Spotting a Phony Bill

Criminals who make and pass fake money often target small businesses who don’t take the time to examine money in small currencies like fives and tens. Counterfeiters may use well-dressed accomplices to impersonate wealthy shoppers who pass $50s and $100s.

These bills could make their way to you. And if you even suspect a bill is counterfeit, you are prohibited from using it.

You can examine bills to see if they are real or not. Business Know-how lists a few ways:

  • Hold the bill up to a light and look for the holographic image of the president’s face. The holograph should match the printed face exactly.
  • Keep the bill up to the light and check for a thin vertical strip. This is text spelling out the bill’s denomination, and appears only on legitimate money.
  • Hold the bill to an ultraviolet light. “The $5 bill glows blue; the $10 bill glows orange, the $20 bill glows green, the $50 bill glows yellow, and the $100 bill glows red – if they are authentic!,” says Business Know-how.

Next Steps?

If accused of counterfeiting, you will be well-advised to find an experienced, reliable defense attorney. Choose one with experience in this line of defense, and is ready to help you put your best face forward before the judge.

*Image courtesy of Money

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I Disrespected a Police Officer: What Should I Do? /disrespected-police-officer/ /disrespected-police-officer/#comments Fri, 07 Nov 2014 06:00:51 +0000 /?p=1433 Disrespect for authority has always come at a price, and when you do it to a Texas police officer it’s no exception. It doesn’t matter whether you ignored him (or her), swore at him, flipped him the bird or filmed him with your smartphone camera, he is free to consider it disrespect. Of course, in […]

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Disrespect for authority has always come at a price, and when you do it to a Texas police officer it’s no exception. It doesn’t matter whether you ignored him (or her), swore at him, flipped him the bird or filmed him with your smartphone camera, he is free to consider it disrespect. Of course, in terms of freedom of speech you’re also free to say whatever you want. You can even do what you want as long as you don’t appear to be resisting arrest, refusing to comply with certain demands or creating a disturbance.

How to Treat a Police Officer

PoliceSo, what can—and can’t—you get away with, when it comes to how to treat a police officer? For starters, you might feel like telling him his fortune, but it’s better not to do so. Even if you believe that doing so is freedom of speech, it can get you arrested for disorderly conduct. The charge might not stick, but you’ll still end up being detained, finger-printed and locked up for a few hours. If it’s worth it to you to do so, make sure you have the contact number of a good criminal defense attorney in Texas that you can call.

When a police officer stops you, the only thing you are obliged to comply with is to show your driver’s license and registration, if you’re in a car. If not, you don’t even have to give your name and/or address until you are officially detained, although withholding it might get you arrested on suspicion of being a wanted individual.

Beyond that, the best ways to treat a police office to avoid any complications are:

  • Remember that anything you say can be used against you later, even if it’s a private conversation that is overheard by the officer.
  • Avoid arguing with the police. If you don’t want to comply with unlawful requests to search you or subject you to field sobriety tests (FSTs) on the roadside, simply tell the officer that you prefer not to do so.
  • Don’t answer questions. Apart from presenting your license and registration, you aren’t required by law to provide any information whatsoever, but that doesn’t mean it’s a good idea to tell the officer to take a hike. Stay calm and remain polite, and simply tell him you have nothing to say.
  • Keep your hands in full view of the officer, so he can’t mistake your reaching into your pocket to grab your keys as going for a gun.
  • Don’t run, and don’t touch any officer. Either of these actions can be misconstrued and will get you into more trouble than it’s worth.
  • Don’t resist arrest—not even if you know you are innocent. That’s a sure way to land up being charged for doing so, when in fact you might be released without any charges once your innocence is established.
  • Don’t get snarky with the police. Telling them to “wise up” or threatening them that you’re going to file a complaint or call your friend the senator is a good way to fast-track some inconvenient charges, even if they are unfair.
  • Avoid making any statements about the incident that led to your being detained. By doing so, you give away potential defense options and enable the officers to use them against you.
  • Write down everything that happens, as soon as you get a chance. Make a mental note of officers’ badge names and the numbers on the patrol cars. Collect contact details from any witnesses, if possible.

If you are hurt, take photos of the injuries as soon as you can and then get medical attention.

Things a Police Officer Might Do If He Feels Disrespected

Police are aware of the “contempt for cop” trend, which has members of the public refusing to comply with police orders and generally rebelling against their instructions.

If the officer who stops you believes you have disrespected him, he might:

  1. Detain you unlawfully, keeping you in custody without having any real reason to do so
  2. Arrest you on the grounds of disorderly conduct or disturbing the peace
  3. Make intimidating comments, such as the use of racial slurs, hate speech or threats
  4. Use force to detain you, if he feels he can justify doing so in court
  5. Become abusive, push you around and possibly hurt you to instill fear in you

Obviously, the majority of these actions are themselves unlawful, but in the heat of the moment that might not be considered. And you’d likely rather avoid the unpleasantness of some of them if you possibly can.

What to Do If You Disrespect an Officer

If you find yourself in this position and you’ve already managed to anger the officer, it doesn’t mean an arrest is on the cards for you. There might be some things you can do to turn this around and defuse the situation before it gets out of hand.

Some of the ways you can do this are:

  • Apologize – An apology always helps and definitely can’t hurt, as long as it’s delivered with sincerity and humility. Even if you know the officer is wrong and you are right, it’s worth eating a bit of humble pie to get out of the jam you’re in.
  • Maintain Civility – Politeness helps a lot, especially when you have to deliver statements the officer isn’t going to like, such as refusing to answer his questions. Explain that you respect the work he does but you know your rights and you have nothing to say to him, or you would prefer not to comply with his instructions to answer questions/do field sobriety tests/allow him to search your car or person.

Whatever you do, don’t give up your legal rights. Keep notes or record what’s happening on your phone, and insist on contacting a criminal defense attorney in Texas at the earliest possible opportunity.

*Image courtesy of Tristan Reville

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DWI, DUI, OWI and BUI: What Do They Mean? /dwi-dui-owi-and-bui-what-do-they-mean/ /dwi-dui-owi-and-bui-what-do-they-mean/#comments Tue, 04 Nov 2014 13:00:13 +0000 /?p=1427 Alphabet soup. The human knack of abbreviating everything and using a few letters to describe it can make the law extra-confusing for anyone without exposure to the terms. When you’re picked up for a DWI, for example, how is it different from a DUI? And what about the OWI and the BUI? As the old […]

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Alphabet soup. The human knack of abbreviating everything and using a few letters to describe it can make the law extra-confusing for anyone without exposure to the terms. When you’re picked up for a DWI, for example, how is it different from a DUI? And what about the OWI and the BUI? As the old song says: “You say tomato, I say tomato!” Doesn’t it just make you want to call the whole thing off?

OWIUnfortunately you usually can’t just call it off, not when you’ve been arrested and charged under any of these four acronyms. What you can do is to understand what they mean, how they (and their penalties) differ and why your situation might qualify for one and not another. Here’s the lowdown on the different ones:

DWI

This is the most common charge in this category, and it refers to Driving While Intoxicated. Individuals who are over the legal drinking age of 21 years and who are arrested for driving with a blood alcohol content (BAC) of 0.08% or higher are generally charged with DWI. If your BAC is between 0.05% and 0.08% but you are obviously impaired, you can be charged under DWI even though you aren’t officially over the limit. DWI can also apply to the use of drugs if the driver is impaired as a result of their use.

DUI

This refers to Driving Under the Influence, although it can apply to alcohol, narcotics, prescription or over-the-counter drugs too. It’s used specifically when a licensed driver under the age of 21 is found to have consumed alcohol or used drugs. The reason DWI is not used in these cases is because young drivers aren’t legally permitted to have any BAC, so it doesn’t actually matter whether you are intoxicated or not. If you have alcohol in your system you are considered to be under the influence and can be charged with DUI.

OWI

It’s not just motor vehicles that are dangerous during Operation While Intoxicated. Any type of heavy machinery and equipment can be equally hazardous if operated by an impaired person. Types of equipment that typically qualify for OWI include:

  • Forklifts
  • Earth-moving machinery
  • Factory equipment, such as metal presses
  • Cranes

However, OWI can also apply to driving while intoxicated, and is a more serious charge than DWI. The operator’s level of intoxication is determined by his BAC at the time of his arrest. In some cases, the accused can attempt to downgrade from OWI to DUI, if certain conditions apply. These include whether the person appears to be repentant and what the BAC level is compared with legal limits.

BUI

This one applies to Boating Under the Influence, which is a contributing factor in one-third of all fatal recreational boating accidents. Intoxication is considered more dangerous to boaters than drivers, because they are less experienced and less confident on the water than they are on the road. On average, the BAC of a boater who weighs less than 200 pounds is over the limit after two drinks.

In every state it is illegal to operate a boat while under the influence of either alcohol or drugs and Texas polices its waterways according to BUI statutes. The Coast Guard has federal authority to apprehend boats in any waters, and to ask the state law enforcement to make an arrest.

Legal Penalties

The penalties typically differ for each of the charges, too.

  • DWI carries punishment of between 3 and 180 days in jail for first-time offenders, a fine of up to $2,000 and suspension of their license for between 90 days and a year. Second- and third-time offenders are likely to get higher sentences than the first time around, including an ignition interlock device on their car. Third-timers can get a sentence of a minimum of 2 years in prison.
  • DUI, because it usually relates to younger, mostly first-time offenders, typically carries a penalty of a fine up to $500 and suspension of the defendant’s driver’s license for up to 60 days. For second and third offenses, however, the penalties increase proportionately.
    The penalty for OWI, if you are unable to downgrade to a DWI, depends on the circumstances and the outcomes of the offense. Guidelines for OWI punishments are not clearly specified, and it’s a fairly new addition to the statute books.
  • BUI is usually prosecuted along similar lines to DWI and OWI. The punishment depends on the severity of the offense and its consequences. For example, if a fatality has occurred as a result of BUI, the defendant is likely to attract other charges in addition to the basic charge.

Regardless of what you’re charged with, you’re going to get some punishment to comply with, unless there are mitigating circumstances or you have a good Texas criminal defense attorney on your side.

*Image courtesy of Jenn Durfey

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Houston Child Abuse Conviction: Possible 99 Year Sentence /houston-child-abuse-conviction-possible-99-year-sentence/ /houston-child-abuse-conviction-possible-99-year-sentence/#comments Fri, 31 Oct 2014 12:00:10 +0000 /?p=1421 It’s a nightmare that happens far more often than it should. You—or a member of your family—is accused of child abuse, and whether it’s true or not the consequences can be extremely serious for your life and future. At times like that, you deserve the best legal counsel possible to help you get justice. Here’s […]

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It’s a nightmare that happens far more often than it should. You—or a member of your family—is accused of child abuse, and whether it’s true or not the consequences can be extremely serious for your life and future. At times like that, you deserve the best legal counsel possible to help you get justice. Here’s what child abuse charges mean in Texas, and the penalties that go hand-in-hand with them.

Understanding What Child Abuse Is

According to the Texas Criminal Code, child abuse is any activity or omission that causes harm to a child or prevents his (or her) health and development. This applies to physical, mental and emotional wellbeing, and the endangerment can take any of these forms:

  1. Physical or emotional injury
  2. Sexual abuse or exploitation
  3. Physical neglect
  4. Medical neglect
  5. Inadequate supervision

handcuffsMost of these charges exclude anything considered “reasonable” discipline of the child, as well as anything that happens by accident or as a result of insufficient resources (money) to care for him. The penalties are as varied as the offenses, and it’s helpful to understand which charges are typically laid in each situation so you know what punishment to expect.

When Are Charges Laid?

In most cases, the child abuse victim is interviewed by a social worker or a medical professional to determine exactly what happened, and to hear the story in the child’s own words. Medical examinations are done when necessary to check for evidence of physical or sexual abuse, and after that the district attorney decides whether to press charges and if so, which ones to use. Certain charges are classified as felonies, while others are classified as misdemeanors, depending on how severe the consequences are. For example, inadequate supervision that doesn’t result in an injury might be considered less serious than actual physical abuse.

What Are the Penalties?

You can find the full list of penalties in Chapter 12 of the Texas Penal Code, but these are the ones that usually apply in child abuse cases.

Misdemeanor Penalties

If you are charged with a Class A, B or C misdemeanor, the penalties will depend on the seriousness. A misdemeanor charge could qualify for a trial by jury, and the type of penalties typically given for misdemeanors in Texas include:

  1. For a Class A misdemeanor, the punishment can include up to one year in jail and/or a fine of up to $4,000
  2. Class B, which is less serious than Class A, carries up to 180 days in jail (six months), and/or a fine of up to $2,000
  3. Class C convictions don’t include any jail time, but you could get a fine of up to $500

If you have a skilled Texas criminal defense lawyer, he will prepare a defense for your trial that will work to minimize the sentence you get.

Felony Penalties

Felony charges are much more serious and child abuse defendants could be charged with a felony in cases such as:

  1. The abuse results in physical injury to the child
  2. The child is under the age of 14 years
  3. The victim is mentally incapacitated
  4. The situation is aggravated by the involvement or assistance of another person
  5. The accused has a previous conviction for a similar crime

In Texas felonies are classified on different levels of crime, and the punishments are proportionate to the level unless your lawyer can prove mitigating circumstances:

  1. A Capital felony, such as one that results in the death of a victim, gets a punishment of death or life without parole.
  2. A First Degree felony conviction brings with it a prison sentence of between five and 99 years, and a fine of up to $10,000. This type of crime includes sexual assault of a child.
  3. A Second Degree felony, such as a crime that results in serious injury, is punishable by between two and 20 years in prison and a fine of up to $10,000.
  4. For a Third Degree felony the prison term is a maximum of 10 years, while the fine amount can also be up to $10,000.

Sex Offenders’ List

In convictions of child abuse that include a sexual component, the defendant is also likely to be penalized by being listed on the National Sex Offender Registry. This is a sentence that follows you for life and can make finding a job and making a future very difficult. At all costs, you need to try and avoid being listed in the register.

A skilled criminal defense attorney in Texas doesn’t care if you are guilty or innocent. He cares about protecting your dignity and reputation.  Even if you are convicted, your attorney can get you a better result than you might have otherwise. He can also protect your rights and explain fully the law, your options and the outcomes you can expect.

*Image courtesy of handcuffs

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What Should I do If I’m Being Investigated? /im-investigated/ /im-investigated/#comments Tue, 28 Oct 2014 12:00:54 +0000 /?p=1416 Every criminal defense attorney in Texas has had the experience of dealing with clients who have shot themselves in the foot. Not literally, but figuratively. That’s what happens when you’re being investigated and you fail to exercise your rights under the law. Whether it’s because you aren’t familiar with your rights or you forgot to […]

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Every criminal defense attorney in Texas has had the experience of dealing with clients who have shot themselves in the foot. Not literally, but figuratively. That’s what happens when you’re being investigated and you fail to exercise your rights under the law. Whether it’s because you aren’t familiar with your rights or you forgot to act on them, the harm can be challenging to reverse. Regardless of whether you’re guilty or not, it’s important to exercise your rights to get fair treatment. Even if you’re innocent, it’s vital to know and use your rights and not just assume everything will be okay.

The Basic Rights

InvestigationThere are four basic rights you have when you’re the target of a police investigation. These are:

  • The right to privacy
  • The right to leave
  • The right to counsel
  • The right to remain silent

Most people are familiar with the last right, because it’s included in the Miranda warning that is typically read on arrest. The others aren’t quite as clear, so I’m going to cover them in detail.

The Right to Privacy

According to the Fourth Amendment, you have the right to secure your person, home, papers and effects against search and seizure, unless a warrant is produced. If the police don’t have a warrant, don’t allow them to search anything without consulting a qualified criminal defense attorney in Texas. Warrants are only issued once the police can produce probable cause that they expect to find evidence in an active case.

Also, just because you have a previous conviction or a criminal record doesn’t mean you’ve committed a crime, and it doesn’t give police any additional reason to search. If the police ask for permission to do so, it means they don’t have a warrant. This usually indicates that they don’t have enough evidence to get one, either. You have the right to say no, and you should use it.

If the police have a warrant you are required to comply with it, but until then don’t allow any searches to take place. Judges are usually careful about issuing warrants unless convinced the police will find additional evidence during a search. Remain polite and inform them that you are exercising your right to privacy.

When you’re under arrest, your right to privacy also applies to physical evidence. You aren’t required to agree to tests such as giving blood or DNA samples. There’s one difference to this, however, and it’s a big one: If you’ve been arrested on a DWI then an in-station breathalyzer test is mandatory. If you refuse, your driver’s license will be revoked. The reason for this is because when you take out a driver’s license you sign your agreement to submit to such as test when required, so it doesn’t fall under the right to privacy rule.

The Right to Leave

In certain circumstances, an officer can stop you and ask you questions. If he thinks you may be armed they can pat you down to check for weapons, but they can only arrest you if they find probably cause that you have committed a crime. If you find yourself detained anywhere, whether it’s in your home, a police station or a public place, unless you are under arrest for probable cause you have the right to leave.

How do you find out whether you can leave? Simply ask politely “Am I under arrest?” If the answer is no, then leave immediately and contact a criminal defense attorney for advice.

The Right to Counsel

If you are under arrest, or the police tell you that you are a potential suspect and may be placed under arrest, at that point you can exercise the right to counsel. Don’t ask for your telephone call – that doesn’t apply at this point. Ask for a Texas criminal defense attorney, and the police officer should immediately make arrangements to get you one. It doesn’t always happen immediately, because sometimes attorneys are unable to drop everything right there and then, but you’re likely to get to see someone the same day.

The Right to Remain Silent

Once you’ve been read your rights anything you say can be used against you, even if the officer overhears a private telephone conversation between you and someone else. Remember all calls are recorded, too, so you have to be aware of what you’re saying.

Don’t speak to anyone about your case. If you’re guilty, telling creates evidence against you. If you’re innocent, keep quiet so nobody can make up stories against you using whatever you tell them.

The best thing you can do if you’re being investigated for a crime is to appoint a skilled criminal defense attorney in Texas to handle your case. Tell him everything and follow his advice to get the best solution to your predicament.

*Image courtesy of Carl Wycoff

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