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What Is a Motion to Suppress Evidence?

Motion To Suppress Evidence

If you are charged with a crime in Collin County, such as drug possession, you have a constitutional right to confront the witnesses and evidence against you. In some circumstances, you can even request the court exclude certain evidence if it was obtained by the prosecution in an illegal manner. Such a request is commonly known as a “motion to suppress.”

Protecting a Defendant’s Constitutional Rights

The motion to suppress is rooted in the Fourth Amendment to the U.S. Constitution, which protects all individuals from “unreasonable search and seizures.” This means that the law requires the police to have reasonable suspicion that a crime has occurred to seize you and search your person. The law also requires that the police have probable cause to believe that evidence of crime will be found before they search your car. Further, the law requires that the police obtain a search warrant based on probable cause before they may search your home. There are some exceptions to the Fourth Amendment requirement of probable cause such as consent, exigent circumstances, etc.

When an officer conducts a search in violation of the Fourth Amendment, the defendant may file a motion to suppress any evidence arising from the search. For example, let’s say a police officer stops a person for speeding and then proceeds to search the car without the driver’s permission or warrant. The officer finds illegal drugs in the car’s trunk and arrests the driver for drug possession. In court, the driver files a motion to suppress the drugs as a Fourth Amendment violation. The judge grants the motion and the prosecution will likely have to dismiss the case as no other evidence the defendant committed a crime.

Deterring Police Misconduct Enforcing the Fourth Amendment

The above example is a relatively simple illustration of how a motion to suppress works. In fact, not every unconstitutional search is suppressed, and not all suppressions lead to a dismissal of charges. The U.S. Supreme Court, which created the “exclusionary rule” that governs motions to suppress, has said the purpose of the rule is to deter police misconduct, not necessarily help defendants avoid conviction.

The courts have also recognized a number of exceptions to the exclusionary rule. If a police officer has a “good faith” belief that a search is constitutional–i.e., she obtains a warrant that turns out to be defective–a judge may deny a motion to suppress. Similarly, if the prosecutor can prove that evidence obtained through an unconstitutional search would have been “inevitably discovered” through other, lawful means, the judge may still admit the challenged evidence.

Indeed, motions to suppress are one of the more complicated facets of criminal law. An experienced Collin County criminal defense attorney knows how to handle a motion to suppress and other matters related to the protection of constitutional rights. If you have been charged with a serious crime, and are facing potential jail time, you want that experience on your side. Contact the offices of Rosenthal & Wadas, PLLC, if you need to speak with a qualified Collin County DWI lawyer right away.

Posted in Criminal Defense

What To Do If Your Teen is Pulled Over With Friends Who Have Drugs in the Car

Police Car

Your teenager is out with friends. One of them offers her a ride home. The friend is driving a little too fast and is pulled over for speeding.

But what started as a simple traffic stop soon escalates. The driver is acting nervous, which makes the officer suspicious. The officer starts asking questions. Teenagers are not stupid, but they are not going to outsmart a Collin County police officer. The officer eventually “convinces” the scared teens to let them search their purses and the car itself.

That’s when the officer finds illegal drugs in the console of a car. The driver insists the drugs aren’t his: He quickly blames your daughter, saying she must have put them there when he wasn’t looking. The officer decides to threaten arrest to everyone.

The Dangers of “Joint Possession”

You might think this is all a misunderstanding. Surely, you can just go down to the police station, explain that your child has never used drugs, and that will be that. Unfortunately, the Texas legal system does not work that way.

Even if your child is not found having drugs in their actual possession–i.e. in their purse or pockets–they may still be charged with a crime if prosecutors can prove there was “joint possession.”

The legal definition of “possession” is “actual care, custody, control, or management” of the contraband. Texas Penal Code s1.07(a)(39). For the Government to prove that the Accused “possessed” the contraband, the Government must prove: (1) possession and (2) that the Accused knew that the item possessed was contraband.

That much is clear enough when the Accused is caught with contraband in his pocket, or in her purse. But, what happens, for example, when a bag of pot is found in a car with two occupants? Can both be charged with possession of the same bag of pot?

Exclusive v. Joint Possession

“Exclusive possession” refers to possession of drugs or contraband by a single person. For example, if the Accused is arrested, and police find a gram of heroin in the Accused’s pocket or purse, the Accused would be alleged to have had “exclusive possession” of the contraband.

“Joint Possession” refers to possession of drugs or contraband exercised by more than one person. For example, if three people are in a car that is stopped by police, and a bag of pot is found underneath the back of the passenger seat on the floor, all occupants of the car could be charged with possession of the bag of pot if the meet the definition of Texas Penal Code s1.07(a)(39). Possession does not have to be exclusive—contraband can be jointly possessed by two or more persons. So, both occupants of the car can charged with possession of the same item(s) of contraband.

Here is a recent Texas case that illustrates how constructive possession works. A Texas police officer pulled a car over because he suspected the driver had outstanding arrest warrants. There were two female passengers in the car, one in the front and the other in the back.

The officer confirmed the identity of the driver and placed him under arrest for the existing warrants. The police then searched the two passengers, with their consent, but found no contraband. But after the car was impounded and searched following the arrest, officers discovered a syringe in “a compartment underneath the air conditioner/heater control.” The syringe contained methamphetamine.

Possession of methamphetamine is a much more serious offense than, say, marijuana. Indeed, the jury found the defendant in this case guilty of a state jail felony, which carries a two-year prison sentence. Although the defendant actually prevailed in an initial appeal, the Texas Court of Criminal Appeals reinstated the conviction after prosecutors appealed.

The Court of Criminal Appeals explained that while “mere presence is insufficient to establish possession” of illegal drugs, there are a number of factors prosecutors and jurors may use to infer a “link connecting the defendant to the knowing possession of contraband.” Among other things, these factors include:

  • The drugs were in plain view of the police officer;
  • The defendant was actually under the influence of drugs at the time of arrest;
  • The defendant made “incriminating statements” to the police;
  • The drugs were found in an “enclosed” place; and
  • The defendant’s overall conduct “indicated a consciousness of guilt.”

In this case, the defendant argued one of his passengers must have put the syringe under the dashboard when he wasn’t looking. But the Court of Criminal Appeals said the jury was allowed to infer “that the syringe was in the compartment the entire time.”

Has Your Child Been Charged With a Drug Crime in Collin County?

Most parents do not realize that their child can be charged with joint possession. This is why it is essential to teach your kids never to get into a car if they suspect anyone has or is using drugs. It is not enough for your own child to avoid using drugs. They need to be proactive and not allow themselves to be placed in a potentially compromising situation.

But everyone makes mistakes. Getting a ride home should not lead to a felony conviction. If your child has been unfairly charged with drug possession, you need to speak with an experienced Collin County drug crimes lawyer as soon as possible. Call a skilled Collin County criminal defense attorney with Rosenthal & Wadas today at 972-369-0577 if you need immediate legal assistance.

Posted in Drug Crimes

How Can an Edible Brownie Become a Felony Drug Charge?

Brownies

Marijuana possession is illegal in Collin County and throughout Texas, except for narrowly defined medical uses. While other states, such as Colorado, have moved to legalize “recreational” marijuana use, the criminal prohibition remains unchanged in Texas. This means that even if you purchase marijuana in a state where it is permitted, you cannot legally bring the pot back to Texas.

Life in Prison for 1.5 Pounds of Brownies?

Texas’ prohibition on marijuana extends to anything that contains its main psychoactive ingredient, tetrahydrocannabinol (THC). This includes any “edible” form of marijuana, i.e. a food product where THC is used as an ingredient. THC is quite popular in baked goods, such as cookies and brownies, since it is soluble in fats (such as cooking oil) rather than water.

While “cannabis edibles” may not contain much active THC–in many cases it is only between 5 and 10 milligrams–it can land a person in serious trouble with Texas law enforcement. Like most states, Texas classifies drug possession crimes according to the weight of the controlled substance recovered from the defendant. For instance, possession of 2 ounces or less of marijuana is a Class B misdemeanor punishable by up to 180 days in jail and a $2,000 fine. But possession of one pound of marijuana is a state jail felony, where the maximum penalties escalate to two years in prison and a $10,000 fine.

So what is the big deal, you might ask, if someone is caught with a little brownie containing 10 milligrams of THC? That is less than 2 ounces, right? Wrong. Texas considers the entire weight of the edible, not just the THC content, in making a drug possession charge. If you are carrying a pound of brownies–roughly 8 servings–you can be charged with possessing one pound of marijuana, even if most of what you are carrying is actually butter and flour.

If you think this is an exaggeration, consider a 2015 case from Austin. A 19-year-old man was arrested for “making and selling 1.5 pounds of pot brownies” and cookies, according to the Austin American-Statesman. The brownies contained not only THC but “hash oil,” a marijuana resin that is classified as similar to ecstasy. Possession of more than 400 grams of such drugs is a first-degree felony in Texas and carries a possible sentence of life imprisonment.

Let Our Collin County Drug Crimes Lawyers Help You

The defendant in the Austin case ended up pleading guilty to a second-degree felony charge and received probation. He may not be facing life in prison, but he is still a convicted felon. If you are facing unlawful possession of a pot brownie or any other marijuana product, you need to take the matter seriously. An experienced Collin County criminal defense attorney can make sure the police and prosecutors respect your constitutional rights. Contact the offices of Rosenthal & Wadas today at 972-369-0577 to speak with a Prosper, Texas drug crimes attorney who knows how to deal with these types of cases.

Posted in Drug Crimes

Is Grandma a Drug Dealer?

Prescription Drugs

The term drug crime conjures the image of meeting someone in a back alley to buy marijuana or heroin. But for many Collin County residents, drug crimes involve everyday products you get at the local pharmacy. In fact, Texas prosecutors have increasingly focused on prescription drug crimes, especially those involving popular pain medications.

Drug Crimes Involving Prescription Drugs

Prescription drugs are classified as “controlled substances” by federal and state laws. This means it is illegal for anyone to possess them without a doctor’s prescription. So, for example, if you take one of your spouse’s prescription sleeping pills, you are committing a crime.

Now, your spouse is unlikely to report you to the police. But consider a sadly all-too-common scenario. Many elderly Collin County residents have trouble making ends meet, so they decide to resell some of their prescription medication pills to people suffering from drug addiction. Nobody wants to think of grandma as a drug dealer, but in the eyes of the law, that is what she is.

And it is not just the elderly. Prescription drug abuse is also common among teens and young adults in Texas. In many cases a teenager will take prescription drugs from their parents’ medicine cabinet and sell them at school. If you do not keep a careful watch over your own prescriptions, you may be surprised to find one day the police are at your door seeking to interview or even arrest your son or daughter.

Prescription Fraud

On the other end of the spectrum, many people are charged with fraudulently obtaining prescriptions. This is often the case with people who become addicted to pain medication. Some people are so desperate they steal their doctor’s prescription pad. In other cases, an addict may go obtain multiple prescriptions from different doctors or they may try and alter a legitimate prescription to increase the quantity or dosage.

All of these acts are considered criminal offenses. Texas law enforcement has become especially aggressive in recent years in pursuing prescription drug fraud related to opioids (pain relievers), sedatives and antidepressants, and stimulants. Some of the more commonly abused prescription drugs include Buprenorphine, Oxycodone, Oxycontin, Ritalin, Valium, Vicodin, and Xanax.

What Should I Do If I’m Charged with a Prescription Drug Crime in Collin County?

If you are charged with a prescription drug crime, the important thing is not to panic or try to deal with law enforcement by yourself. You need to contact an experienced Collin County drug crimes lawyer who knows how to deal with cases like yours. Call Rosenthal & Wadas today at 972-369-0577 to schedule a consultation with one of our qualified Collin County criminal defense attorneys.

Posted in Drug Crimes

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

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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