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What Is a Prohibited Weapon in Texas?

Brass Knuckles

Texas has a reputation as Second Amendment-friendly state. But the right to own and carry a handgun or shotgun does not automatically apply to other kinds of weapons. In fact, Collin County residents need to know they may be in possession of items that are considered illegal weapons under Texas law.

Brass Knuckles

For example, did you know it is illegal to possess, buy, or sell brass knuckles anywhere in Texas? It is. The Texas Penal Code actually bans any kind of “finger rings or guards made of a hard substance” and designed to inflict “serious bodily injury” on someone else.

It does not matter if you actually wear or use the brass knuckles. If a Collin County law enforcement officer conducts a legal traffic stop and finds brass knuckles in your car, you can be charged with a Class A misdemeanor. If convicted, this carries a potential maximum sentence of one year in jail and a $4,000 fine.

Other Prohibited and Restricted Weapons

Aside from brass knuckles, the Penal Code also bans Texas residents from possessing the following weapons:

  • armor-piercing ammunition;
  • chemical dispensing devices, except for personal protection devices such as pepper spray;
  • a “zip gun,” i.e. an improvised firearm; and
  • a caltrop, spike strip, or other tire deflation device.

There are also certain weapons that are prohibited unless they are registered with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives:

  • machine guns;
  • explosives, including bombs, rockets, mines, and grenades;
  • rifles with a barrel length of less than 16 inches;
  • shotguns with a barrel length of less than 18 inches;
  • altered or “sawed-off” shotguns with an overall length of less than 36 inches; and
  • firearm silencers.

Anyone who possesses, transports, or buys and sells any of the weapons listed above can be charged with a third-degree felony, except for zip guns, which is considered a lower-level state jail felony. In Texas, the maximum penalty for a third-degree felony conviction is ten years in prison and a $10,000 fine.

Illegal Carrying of Handguns, Knives and Clubs

Finally, there are certain kinds of weapons that are legal to possess and carry on their own property, but not out in public. This applies to handguns as well as certain knives and clubs.

Illegal knives include:

  • any regular knife with a blade of more than 5.5 inches;
  • daggers;
  • throwing knives;
  • swords; and
  • spears.

Illegal clubs include:

  • blackjacks;
  • nightsticks;
  • mace; and
  • tomahawks.

Most offenses under this category are considered Class A misdemeanors.

Collin County Attorneys on Your Side

If you arrested for any offense related to unlawful possession or carrying of a weapon, you need to speak with a Collin County criminal defense lawyer as soon as possible. Even a misdemeanor conviction can have serious personal, financial, and legal consequences. You have the right to work with counsel who will make sure the police and the courts treat you fairly. Contact the offices of Rosenthal & Wadas today at 972-369-0577 to speak with a Collin County criminal defense attorney who knows how to deal with weapons charges.

Posted in Federal Firearms Violation

You Just Received a Call From a Detective About a Sex Offense Investigation – What Do You Do?

Phone Call

One of the scariest things that can happen to you is receiving a call from a Collin County police officer conducting a sexual assault investigation. Even if you know you did nothing wrong, convincing the police of that is often a futile effort. Many sexual assault cases pit the accuser’s word against that of the accused.

Sexual Assault Allegations Can Lead to Very Serious Criminal Charges

The difficulty in proving sexual assault cases explains why more than in any other category of crime, a detective will make the effort to either visit or call the target of the sex offense investigation with the hope of scoring an admission or confession from a scared suspect – because without it there may simply be no other usable evidence to support a criminal charge.

If you are considering allowing an officer or detective to interview you, more than likely you not learn anything about the charges or accusations. They are trained in getting information from you, and only giving the necessary information to get you to talk. Additionally, if detectives are overly concerned about getting a statement from you, it is quite possible that it is only because they do not have enough evidence to have you charged with a crime. Again, at this point, you can only hurt yourself by speaking with a detective.

Facing Texas Felony Charges

Sexual assault charges are a serious matter. In Texas, sexual assault is a second-degree felony punishable by imprisonment from 2 to 20. There are even more serious sexual offenses that are first degree felony cases with a punishment range of 5-99 years or life in prison. This means you should not be foolish enough to think you can talk you way out of a charge or that the investigation will simply go away.

You have a constitutional right not to speak with the police. You also have the right to assistance from a Collin County criminal defense lawyer in any dealings with law enforcement. Do not worry that refusing to speak or hiring a lawyer will only make you look guilty. If the police have contacted you, that means you are already a suspect. Asserting your constitutional rights can only benefit you at this point.

Fighting Sexual Assault Charges with a Sex Crimes Lawyer in Collin County

If you are a suspect of a crime and have detectives asking to speak with you, contact an attorney immediately to help you through the process. While no attorney can stop you from being arrested or charged, it is always best to have someone on board early on to advise you of your rights, tell you what you should do and get working right away if you are in fact arrested.

A Collin County sex crimes attorney knows how to deal with police and can prevent you from inadvertently saying something that will only make your situation worse. Contact the offices of Rosenthal & Wadas today at 972-369-0577 to schedule a consultation with one of our Collin County criminal defense lawyers.

Posted in Sex Crimes

2017 Aspiring Attorney Scholarship Winner Announced

jayelle-scholarship-winner-blog-image

Rosenthal & Wadas is pleased to announce that Jayelle Lozoya is the recipient of the 2017 Aspiring Attorney Scholarship. Jayelle is a second-year law student at the South Texas College of Law.

“Rosenthal & Wadas is committed to supporting the next generation of attorneys both in their education and in their professional development,” said Derk Wadas.

This scholarship was offered to law students across the country to assist with college education expenses. Judges selected the scholarship winner based on school activities, positions of leadership, special honors and awards, community involvement, academic performance and an essay.

On behalf of the lawyers and staff at Rosenthal & Wadas, we would like to congratulate Jayelle Lozoya on being the 2017 winner of the Aspiring Attorney Scholarship. We wish her the best of luck in all her educational endeavors.

Posted in Uncategorized

What Is “Probable Cause”?

Arrested teenager with handcuffs on his hands

You cannot be arrested for a crime in Collin County unless police and prosecutors have probable cause to charge you. But what exactly does “probable cause” mean? You have probably heard that phrase many times before without understanding its origin or importance.

Every American’s Constitutional Right

In American law, probable cause is a legal standard specified in the Constitution, specifically the Fourth Amendment, which protects all citizens against “unreasonable searches and seizures.” In order to justify a search or arrest warrant, police must have “probable cause” to believe that a crime has been committed. Even where the police may conduct a search or arrest without a warrant, they must still have probable cause.

Probable cause essentially means it is “more probable than not” there has been a crime. In this sense, probable cause is more than a mere suspicion or a hunch. But it is less than the standard needed to actually convict someone of a crime at trial, which is “beyond a reasonable doubt.”

Probable Cause and DWI

Probable cause only applies to search and arrest situations. The police may question or briefly detain someone even without probable cause. In cases of detention, police must still have a “reasonable suspicion” of criminal activity. This is a lower standard than probable cause, which requires some factual basis but not necessarily hard evidence.

A common scenario that illustrates the difference between “reasonable suspicion” and “probable cause” is a traffic stop. If a Collin County police officer observes you driving erratically on the highway, he may pull you over on reasonable suspicion of a DWI. At this point the officer does not have probable cause to arrest you or search your vehicle. If the officer subsequently gathers additional evidence–your breath smells of alcohol, you are unable to walk without stumbling, there is an open beer bottle on the front seat of your car, etc.–then there is a probable cause to justify a search (such as a Breathalyzer test) arrest.

A Sex Crimes Lawyer in Collin County Can Help

There are plenty of situations where police jump the gun, figuratively speaking, and conduct a search or arrest without probable cause. If Collin County police violate your constitutional rights it is important to stand up for yourself in court. The Collin County criminal defense lawyers at Rosenthal & Wadas know how to deal with issues related to probable cause and police conduct. Contact us today at 972-369-0577 to schedule a free consultation.

Posted in Uncategorized

New Felony Diversion Program in Collin County

RosenthalWadas_logo

Beginning this month, first-time felony offenders in Collin County now may be offered the opportunity to enter a Felony Diversion Program which would result in the underlying charges to be dismissed and eventually expunged. This is new program was developed by the Collin County District Attorney’s Office.

The entry requirements for the program have not been fully developed yet but will likely apply to candidates with nonviolent felony charges where the accused has either no previous criminal charges or minor offenses.

To be considered a candidate for this new program the offender must have an attorney. The Collin County District Attorney’s Office will refuse to submit a person facing felony criminal charges to this program without one.

If the offender is admitted to Felony Diversion Program and successfully completes the conditions their case will be dismissed. Upon dismissal of the case, one will be immediately eligible to expunge the record and have it removed from their record.

Rosenthal & Wadas would be happy to discuss your case, the benefits of a diversion program and to assist you in applying for this new Felony Diversion Program. Contact our office to set up a free confidential consult 972-369-0577 with one of our seven attorneys.

Posted in Felony

Don’t Fumble Your Future Away Just Because it’s Super Bowl Sunday

football-image

Gathering friends and family around the TV on Super Bowl Sunday is a fan favorite in America. It is one of the most widely watched national events, with millions tuning in time to watch.

With the increased drinking that occurs at Super Bowl events, you can expect a greater police presence, including DWI checkpoints and police stops for suspicion of “drunk driving.” We want you to have a great time, but be safe.

Tips on Avoiding a Super Bowl Sunday DWI Arrest

Here are some tips on how to eliminate your risk of getting charged with a DWI on Super Bowl Sunday.

Do not drink and drive – A DWI charge is the quickest way to ruin Super Bowl Sunday. Texas police are well aware that many people’s plans involve alcohol, so do not take the risk. If you plan to drive, then stay sober.

Designate a driver – Either make a plan with someone, hitch a ride from a non-drinking friend, or schedule a ride with a taxi service.

Be a responsible party host – If you notice a party attendee who has been drinking and plans to drive, stop them immediately. Even being “buzzed” can be considered drunk driving under the law. Have a plan in place to get rides for your guests if they are needed last minute.

Rosenthal & Wadas is Here to Help

No matter who you are rooting for this Super Bowl, the Rosenthal & Wadas team is on your side. We have attorneys available 24 hours a day. DWI charges are serious – even if it is your first offense. A conviction can come with jail time, a steep fine, a loss of driving privileges and other consequences. Fortunately, there may be a defense that works in your favor.

If Collin County police have arrested you for driving while intoxicated, then contact Rosenthal & Wadas. Our Collin County DWI lawyers can help you chose the best way to proceed and give you confidence through the legal process ahead of you. Call 972-369-0577 to schedule a free and confidential consultation.

Posted in DWI

Medicare, Medicaid and Health Care Fraud in Texas

healthcare-fraud

When you hear the word “fraud,” you might think about large-scale financial scams like a Ponzi scheme. But one of the most common types of fraud in Collin County and throughout Texas involves health care providers. Every year the federal government pays out millions of dollars in false and fraudulent billing claims submitted through Medicare and Medicaid.

This is not a small-time con: A Texas Senate investigation in 2012 revealed that over a two-year period, the state “spent $424 million on medically unnecessary orthodontic braces for Medicaid recipients alone.” And that was just a drop in the bucket: Overall, the Texas inspector general’s office “identified more than $6 billion” in Medicaid fraud dating back to 2004.

Justice Department Cracking Down on Medicare & Medicaid Overbilling

First, let us define what we mean by fraud in this context. Medicaid and Medicare are federal programs that help people pay for their health care. Medicare offers insurance coverage for people who are 65 and older. Medicaid provides benefits for low-income individuals regardless of age.

Individual health care providers in Collin County and throughout Texas sign contracts to treat Medicare and Medicaid patients. They are required to follow strict billing procedures established by the government. But in many cases, providers try to game the system. This can take the form of double billing–charging both Medicaid and the patient’s private insurer for the same service–or even billing for services that were never provided.

In other cases, a health care provider who is not properly licensed or otherwise qualified to treat Medicare and Medicaid patients will falsify their credentials to obtain reimbursements. And sometimes, health care providers bill for services they did provide but which they knew were medically unnecessary. All of these acts constitute fraud against the government.

For example, last June the U.S. Attorney’s Office in Dallas charged 12 defendants in north Texas with health care fraud. Nine of the 12 defendants were “charged in connection with three separate home health care schemes.” This refers to the practice of falsely billing Medicaid and Medicare for in-home services to patients. In one case, the Department of Justice (DOJ) said the defendant “hired a physician to apply for a Medicare number to allow him to bill Medicare for physician home visits and to sign false physician certifications for home health care.”

The Dallas cases were actually part of a larger nationwide crackdown against health care fraud. The June 2016 cases resulted in charges against 301 individuals residing in dozens of states. The DOJ said the total amount of fraud involved exceeded $900 million.

Fighting Health Care Fraud Accusations with a Frisco Criminal Defense Attorney

If you are facing fraud regarding health care in Texas, or any other type of white collar charge, and need assistance from an experienced Frisco, Texas criminal defense attorney, contact Rosenthal & Wadas, PLLC, today at (972) 369-0577.

Posted in Criminal Defense, White Collar Crime

How Is Bail Set?

prison-cell

If you are arrested and charged with committing a crime in Collin County, such as DWI or a drug offense, a judge will decide how much bail you need to post so that you can be released from custody pending trial. The conditions of bail depend on a number of factors, including a defendant’s past criminal record and the nature of the crime currently charged.

Personal Bond vs. Cash Bail

Bail is defined in Texas law as “the security given by the accused that he will appear and answer before the proper court the accusation brought against him.” Bail is not a form of punishment. The Eighth Amendment to the U.S. Constitution forbids any judge from setting “excessive” bail that is not proportionate to the offense alleged or the defendant’s risk of fleeing before trial.

In many cases, a defendant does not even have to pay cash bail. The judge can release a defendant on “personal bond,” basically the person’s word they will appear at trial. A judge may still set certain conditions. For example, in cases involving DWI or drug offense, the court may condition personal bond on the defendant receiving drug testing or counseling.

If a defendant is not released on personal bond, the court will set cash bail. Sometimes the amount of bail is specified in the arrest warrant. Otherwise, the exact amount is left to the court’s discretion. A judge or magistrate will consider the nature of the alleged crime and any previous failure by a defendant to appear in court. In serious cases, such as murder or drug trafficking, a judge may deny bail altogether.

Bail Bonds

Many times a defendant lacks the financial resources to post cash bail. In those cases a person can obtain a bail bond. This is a third party (a “guarantor”) that agrees to pay the court the full amount of bail if the defendant fails to appear. The guarantor requires the defendant to post a portion of the bail, usually 10 percent, as a fee for the bond service. So, if a defendant is released on $10,000 bail in a felony case, the defendant pays the guarantor $1,000 to post a bond.

Get Help From a Frisco Criminal Defense Attorney

An arrest is a traumatic experience, especially if you have never been in trouble with law enforcement before. Your first priority is understandably making bail and getting out of jail. An experienced Collin County federal criminal defense lawyer can help you with bail and other legal aspects of your case. Contact Rosenthal & Wadas, PLLC if you need immediate assistance.

Posted in Bail, Federal Criminal Defense

What if I Get Arrested in Collin County on New Year’s Eve?

jail-fence

If you happen to find yourself arrested in Collin County on New Year’s Eve for a DWI call our on-call attorneys at Rosenthal & Wadas.

Texas law states that those who are put in jail for a crime must see a judge or a magistrate before a bond can be set. On a holiday weekend it could take a full day or more before a judge arrives to set a bond. In this situation, a criminal defense attorney can be hired to file a writ bond.

A writ bond can only be used in a specific set of circumstances.

  • Charges that are classified as a Class A misdemeanor
  • Charges that are classified as a Class B misdemeanor (including most DWI charges, with some stipulations)

There are certain cases that do not qualify for an attorney writ bond, including traffic tickets, Class C misdemeanors, family violence charges and felonies. While charges for driving under the influence can typically fall under the acceptable category, if there were additional traffic charges or if it was a felony DWI, an attorney writ bond may not be possible.

Hiring an attorney from Rosenthal & Wadas allows you to get the help you need now to get out of jail and make a contact to have help later down the road as you fight your charges and seek a positive end result.

If you need help with any criminal charge over the holidays, contact us at 972-369-0577. Calls are answered 24 hours a day and credit cards are accepted.

Posted in Criminal Defense, DWI

Avoid the Twinkling Lights of a Police Car This Holiday

avoiding-twinkling-lights-blog-post

During the holidays, there are more people on the road traveling to visit family and friends or attending holiday parties and gatherings. Common sense often goes out the window when alcohol is consumed. Having a clear plan before your next holiday event can be extremely beneficial to avoiding a DWI. Stay safe and make plans for a designated driver if you are drinking.

If you are pulled over by the police, people often become nervous because they are unsure if they may be in violation of some ordinance or law. The difference between merely being detained by police and arrested creates different limitations to your rights. It is important to understand what you can do. Police may stop you, and it is not considered an arrest if you are just briefly detained.

A detention occurs when an officer stops and questions a person of interest, generally for a shorter period of time, and requires less than “probable cause”. An officer can detain anyone if they have a “reasonable suspicion” that the person committed or was involved in any criminal activity.

In the event you are stopped for questioning, it is important to remain calm, be polite and keep your hands visible at all times. You do have the right to remain silent, however, it is best to identify yourself first and then notify the officer that you are exercising your right to silence.

If you are unsure of the situation, you can ask the officer why you have been detained and if you are under arrest. If you are not under arrested, you have the right to leave. If the officer proceeds to arrest you, you have the right to speak to a Criminal Defense Attorney.

An arrest occurs only upon a determination of “probable cause”, this means the officer must have a “reasonable belief” that you committed a crime. Once the arrest is made, an officer can lawfully conduct a search for weapons, evidence and contraband. At this point, the officer can hold you in jail for up to 24 hours or until a warrant is issued for the charges.

Anytime you are stopped and arrested it is important to quickly consult a Frisco Criminal Attorney regarding your rights and advice on what you should do. If you have been arrested for a DWI call Rosenthal & Wadas at 972-369-0577 to speak with an attorney.

Posted in DWI

Frequently Asked Question's

Assault Family Violence

1. What’s the difference between “domestic violence” and “family violence”?

Not much. “Domestic violence” commonly refers to violence between adults who are married, but “family violence” as defined in the Texas Family Code is broader and includes individuals who are:
  • Related by blood or marriage
  • Current and/or former spouses
  • Parents of the same child
  • Foster parents and children
It doesn’t matter for the above groups whether they live together or not. But the definition also includes:
  • Roommates
  • Individuals who are or were in a dating relationship

2. What are the different kinds of charges for family violence cases?

Several different offenses can fall under the “family violence banner,” but the most common cases are:
  • Assault (offensive touching, sometimes a reduction from a higher charge) – Class C Misdemeanor, $0 to $500 fine
  • Assault Family Violence – Class A Misdemeanor, 0 to 365 days jail and/or up to $4,000 fine
  • Assault Family Violence with prior FV conviction – 3rd and/or up to $10,000 fine
  • Continuous Family Violence (2 or more incidents alleged in one year) – 3rd to 10 years prison and/or up to $10,000 fine
  • Aggravated Assault causing Serious Bodily Injury with Deadly Weapon with Family Violence
  • 1st Degree Felony, 5 to 99 years or life in prison and/or up to $10,000 fine

3. Does it matter if it was a punch or “just a push”?

Yes and no. Bodily injury means any “physical pain, illness, or any impairment of physical condition.” It can be as serious as a stab or gunshot wound, or as simple as pulling someone’s hair. The issue is “did it hurt?” or “did it cause pain?” Some felony offenses allege “serious bodily injury,” meaning “injury that creates a substantial risk of death, serious permanent disfigurement, or [extended] loss or impairment of the function of” part of the body. The more serious the injury, the higher level the offense will be charged. And if the officers aren’t sure, they will usually err on the side of charging the higher offense.

4. What if I’ve been convicted of a case with a finding of Family Violence case before?

If you’ve already been convicted once before of a case with a finding of family violence, then the second arrest will be charged as a 3rd Degree Felony. A 3rd Degree Felony is punishable by 2 to 10 years in prison and/or a fine of up to $10,000. If the State can’t prove the enhancement (the prior case), they may still prosecute the case as a lower offense, usually a Class Assault Family Violence Misdemeanor.

5. I was issued an Emergency Protective Order. What does that mean?

An EPO can be issued on request from a police officer, an alleged “victim”, a guardian, or an attorney for the State. It may require you to not commit family violence or assault, communicate in a harassing or threatening manner, or go near a particular residence. An EPO can be effective for anywhere from 31 to 91 days, and it can be “replaced” upon request by a complainant with a standard Protective Order.

6. What happens if the complaining party doesn’t want to prosecute?

If the person who is alleged as the “victim” doesn’t want to prosecute, then he or she can file an Affidavit of Non-Prosecution with the District Attorney’s office. This can be done through an attorney or, sometimes, DA’s offices have their own protocol. This does not mean the case will dismissed – if the DAs feels they should go forward with the case or even if they can prove it without his or her testimony, they may still prosecute the case. But filing an ANP doesn’t hurt.

7. Can I still own a gun once if I plead guilty to Assault Family Violence?

No. If you are convicted of a Family Violence offense, like Assault Family Violence, you forfeit your rights to ever possess or transport a firearm or ammunition under federal law. If you violate the law, you will be subject to penalties under federal – not state – law.

Drug Offenses

1. What’s the difference between “possession” and “distribute” or “manufacture”?

“Possession” is the basic charge for any drug offense, whether it is marijuana or methamphetamine.  Proving possession requires a showing of “actual care, custody, control, or management.” To “distribute,” a person must deliver a drug in some way other than “administering or dispensing” it. But “manufacture” is the broadest definition of all, including the creation and altering of any drug (other than marijuana), by chemical synthesis and/or extracting natural substances. It can also include the packaging and labeling of a drug.

2. What’s a “penalty group” and how does it affect how I’m charged?

The legislature has divided controlled substances into 4 penalty groups, and each one has its own punishment range, depending on whether the offense is possession or manufacture and distribution, the amount of the substance, and generally based on the dangerousness of the drug itself. Some common drugs and their associated penalty groups are:
  • PG 1 – Methamphetamine, Cocaine, Heroin, Hydrocodone (over 300 mg)
  • PG 2 – Ecstasy, PCP
  • PG 3 -  Valium, Xanax, Ritalin, Hydrocodone (under 300 mg)
  • PG 4 – Morphine, Buprenorphine

3. How will the amount affect how I’m charged?

Charges are divided up by the amount involved, based on the penalty group. For example,  marijuana possession is charged as:
  • Less than 2 oz – class B misdemeanor
  • 2 to 4 oz – class A misdemeanor
  • 4 oz to 5 lbs – 3rd degree felony
  • 5 lbs to 2000 lbs – 2nd degree felony
  • Over 2000 lbs – 1st degree felony
For Penalty Groups 1 and 2 –
  • Less than 1 gr – state jail felony
  • 1 to 4 grams – 3rd degree felony
  • 4 to 200 grams (or 4 to 400 grams for PG2) – 2nd degree felony
  • 200 or more grams (or over 400 grams for PG2) – 1st degree felony

4. What is SAFP?

SAFP stands for the Substance Abuse Felony Punishment program.  This is an intense treatment program for probationers and parolees who need substance abuse treatment.   It includes an “in-prison” phase consisting of orientation, treatment, and then re-entry and relapse prevention.  Then there is a 3 month stay at a transitional treatment center, similar to a half-way house, followed by 9 months of outpatient treatment.  The program can last up to 30 months, depending on successful progress towards recovery and sobriety.  SAFP is perhaps the most intense drug treatment program available, but it is also considered one of the most effective.

DWI

1. I was arrested for DWI. What happens next?

Please remember that you have only FIFTEEN DAYS from the date of arrest to request a hearing on the potential suspension of your driver's license. If you do not request a hearing your license will be automatically suspended 40-days from the date of the arrest. In a typical case, the arresting police agency will send your arrest report to the District Attorney’s Office (“DA”). The DA will then file the formal charge against you in one our six County Courts at Law and you will receive a notice to appear. Generally, there is a four to six week time lapse between the time of your arrest and your fist court appearance.  The period between the arrest and the filing may be much longer in blood draw cases where lab results are pending.

2. How long will it take to resolve the charge against me?

The length of time it takes to resolve a DWI charge will vary. Each case is as unique as a snowflake based on the underlying facts as well as your goals and the prosecutor’s stance on your particular case.  Cases can be resolved as quickly as three months or as long as a year.

3. I failed or refused to submit to a breath or blood test. Is my driver's license automatically suspended?

No. If you request hearing through the Administrative License Revocation (ALR) process within fifteen days of your arrest, your license will remain valid until such time as a hearing takes place. We will personally handle all aspects of the ALR process on your behalf.  At the hearing the State must prove certain facts. If they fail to do so, your license will not be suspended.

4. WHY REQUEST AN ALR HEARING?

The ALR hearing will likely be the only opportunity you have to question the police officer that arrested you under oath prior to trial. If a hearing is set our attorneys will compel the State's lawyers to turn over all the evidence they intend to use against you at the hearing. This will include all police reports and frequently breath or blood test results. Also, unless strategy suggests otherwise, our attorneys will require the presence of the arresting officer at your hearing. The ALR hearing is a tremendous opportunity to test the strength of the State's case against you and to look for weaknesses in their case. At the ALR hearing we will be looking for ways to challenge all aspects of the state's case in an effort to maintain your right to drive. By way of example only:
  • Did the police stop your vehicle in violation of the law?
  • Did the police properly perform the HGN test according to their training?
  • Did the police properly administer the other Standardized Field Sobriety Tests in accordance with their training and the standards of the National Highway Traffic Safety Administration?
  • Do the recorded police observations concerning alleged intoxication rise to the level of probable cause?
  • Was there a valid refusal of a breath or blood test?
  • Did the police comply with the observation period prior to requesting a breath test?
  • Was discovery provided in a timely manner by the State's lawyers?
  • In blood test cases, is there proof that shows that the blood test was taken in a sanitary place, and by a qualified person?
  • In a Chapter 524 case, is there admissible, sufficient proof of operation?
  • Did the police provide any erroneous or extra statutory advice concerning the consequences of refusing or submitting to a breath test.
If you prevail at the ALR hearing the civil case is dismissed and you WILL RETAIN YOUR RIGHT TO DRIVE.

5. What happens if my license is suspended?

If your license is suspended you will likely be able to petition the court for an Occupational Driver's License (ODL). An ODL is a restricted driver's license that will allow you to drive up to twelve hours a day.

6. Why do I need an attorney who focuses his practice on DWI defense?

Defending DWI cases properly requires intricate knowledge of the applicable law; the science involved in breath, and the procedure used by the police to obtain and evaluate evidence in a DWI case. Most attorneys, even those who practice criminal law, do not focus on DWI defense. An experienced DWI attorney may see defenses that may be overlooked by some other attorney. In selecting a DWI attorney, just a few questions to consider are:
  • Does the attorney have experience and success trying DWI cases?
  • Can the attorney explain in clear terms the basic operation of the breath testing device known as the Intoxilyzer 5000?
  • Does the attorney remain current on DWI focused continuing legal education?
  • What specific strategy does the attorney plan to advance in your ALR hearing?
  • Does the attorney try blood draw cases to a jury?

7. I refused to submit to the Standardized Field Sobriety Tests, am I in trouble?

No. You have a lawful right to refuse to submit to any field sobriety test, including the One Leg Stand, the Walk and Turn, the Horizontal Gaze Nystagmus test, and the Preliminary Breath Test. You may also refuse to submit to the Breath Test, however your refusal may trigger certain consequences for your driver's license.

8. I am guilty, do I still need a lawyer?

The short answer is yes. Even a first offense DWI carries a potential punishment range of up to one hundred eighty days in the County Jail and up to a $2,000 fine. Even if you are sure that you are factually "guilty" you should still seriously consider an experienced DWI lawyer who knows the law, the science, and the ins and outs of the court system. First and foremost, we will always force the State's Attorney's to turn over ALL of the evidence to me. The evidence should include, at a minimum, all of the police generated documents, the DVD or video of both the roadside and Intoxilyzer room, and witness statements, the Intoxilyzer breath testing slip, and a lab report in blood test cases. Only when all of the evidence is available can you make intelligent decision about how to proceed. Even if you feel that you were intoxicated, and experienced DWI attorney should be looking at issues such as:
  • How do you look on video?
  • Was the breath or blood evidence obtained lawfully?
  • Was the breath or blood evidence obtained in such a way that its analytical reliability or validity may be compromised?
  • Was the stop of your car by police lawful?
  • Did the police officer administer the Standardized Field Sobriety Tests correctly?
  • Does the police report contain internal contradictions, or is it contradicted by the video?
  • Will the State be able to locate and secure the attendance of the witnesses at trial?
So, even if you think you are guilty, do yourself a favor and hire an experienced DWI attorney who can analyze your case for weaknesses that may benefit you.

9. Am I able to obtain a Deferred Adjudication for a Driving While Intoxicated Charge?

Not under the current state of the law. However legislation was introduced recently introduced which would authorize people charged with a first driving while intoxicated case in Texas to receive deferred adjudication.  The legislation failed, however it may be raised again at a future date in the Legislature. In a deferred adjudication situation, no judicial finding of guilt is made and and the end of the deferral period the case is dismissed.

10. When would I need SR-22 Insurance?

Ordinarily, SR-22 insurance will be required after a DWI conviction or when a person needs an occupational driver's license due to a driver's license suspension. Frequently the suspension is the result of a DWI conviction or an ALR suspension. You may obtain SR-22 insurance by contacting your own insurance company or by contacting another agency. Our office regularly recommends two separate agencies that have provided excellent service to our clients.

Theft Laws

1. I was arrested for Theft, what happens next?

The State typically files a criminal case within 1-2 months. Theft cases can range from a Class C Misdemeanor all the way to a First Degree Felony. The level of offense will depend on the value of what is alleged to have been stolen. Misdemeanor Theft is the most common form of Theft prosecuted in Collin County. Class C Theft (property less than $50), Class B Theft (property $50 - $500); Class A Theft (property $500 - $1,500). Felony Theft involves property valued at $1,500 or more.

2. What are the possible punishments for Misdemeanor Theft?

Potential punishment increases with each degree of theft:
  • Class C: $0 - $500 fine
  • Class B : 0 days  – 180 days in jail and/or $0 - $2,000 fine
  • Class A: 0 days – 1 year in jail and/or $0 - $4,000 fine
The vast majority of Theft cases resolved by a plea or finding of guilt result in some form of probation. Misdemeanor probation can last up to 24 months and can include a wide array of probation terms and conditions, including payment of hefty fines and fees.

3. How will a Theft case affect my record?

Theft is a crime of moral turpitude. If you are convicted of a theft offense, it will remain on your record for life. Unlike some criminal offenses, a Theft conviction will usually raise the concern or disapproval of a current or potential employer.

4. Is there a way to keep a Theft case off my record

There are a few of ways to keep a Theft off your record. The likelihood of doing this will depend upon a variety of factors, including the circumstances of the case and the person who is accused of committing Theft. 

5. What happens at my first court appearance?

The first appearance is more like a work session than anything else. It is an opportunity for your attorney to meet with the prosecutor and discuss the case. Typically, the prosecutor will have a police report, video, and witness statements to share with your attorney along with an initial recommendation for a punishment that the you can receive in exchange for a guilty plea. The first appearance date is usually concluded by selecting another appearance date.

6. What evidence is there that I stole something?

In a shoplifting case, there is usually one or more store employee who claim to have seen something take place inside the store. Frequently, a shoplifting case will involve camera footage shot from one or more angles. Depending upon the circumstances, the police may have conducted further investigation when they arrived, but they don’t always. The State does not need a police officer to testify to prove their case.

7. A store employee was harassing and humiliating to me, did he violate my rights?

Many places of business employ a loss prevention department. These are people who can be dressed up like officers or in plain clothes secretly watching customers. The law allows these people to use limited force to prevent shoplifting. They may grab you, detain you, and question you until the police come. They are not required to play by the same rules that police do because the law considers them to be private, as opposed to government, entities… therefore their thoughtless conduct rarely negates an arrest – but judges and juries have little tolerance for such conduct by store employees and may give them little credibility as witnesses.

8. Why am I in trouble when my friend did it?

The law allows the State to try and put you on the hook for the conduct of another person. Specifically, the law says “A person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the person to commit the offense.” However, mere presence alone will not make someone a party to the offense. In this type of case, the prosecution has the burden to show you did something to affirmatively aid the person committing the theft.  Mere presence alone is not enough.

9. How did they come up with a dollar amount greater than what was on the sticker?

The law also allows the State to try and prove a dollar amount that varies from the sticker price. Specifically, the law says that “the value of the property taken is the fair market value of that property at the time and place of the offense,” and “fair market value is . . . the amount the property would sell for in cash, giving a reasonable time for selling it.”  Merchants are aware of the statutory amounts, and it’s not uncommon for them to attempt to find creative ways to ‘pile-on’ the price.  This is a specific area a trained attorney knows to attack.

10. Is there a link between shoplifting and depression?

Studies have shown that there is a link between shoplifting and depression especially for middle-aged women. While this may not be a circumstance which leads to a jury finding someone not guilty, it is something to consider when talking about punishment.

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