Criminal Law FAQs
Someone I know has been arrested, what should we do?
There are normally two things to consider in the crucial moments which follow an arrest. The first is securing the person’s release from jail as soon as possible. There are a variety of ways this may be accomplished. Which particular procedure is best depends on the facts of each case. But in most cases hiring a respected bondsman is paramount. If an attorney posts the bond, you are required by law to remain with that attorney. IN other words, you cannot hire a new attorney in the future without forfeiting the bond you have already paid.
The second concern is to preserve and develop the arrested person’s ability to defend against the accusations. It is best for the accused to refrain from making statements to anyone concerning the case until he or she has been fully able to consult with an attorney.
In almost EVERY SITUATION, it is best to remain silent. This is YOUR RIGHT. Exercise it!
KNOW YOUR RIGHTS
Five Rules of Survival in the Criminal Justice Jungle
Rule No. 1: Never under any circumstance consent to a search. NEVER. Do not consent to a search of your car. Don not consent to a search of your home. Do not consent ot a search of your friend’s apartment. Do not consent to a search of your person. Do not consent even if the police tell you they have a warrant. Do not consent. EVER.
Rule No. 2: Never physically resist a police officer. Physical resistance is always illegal (unless the police are using excessive force against you, then you may offer “reasonable force” in self defense.) Remember: You SAY “I do not consent” – you DO nothing to resist.
Rule No. 3: When you are a suspect in a criminal case, NEVER give any statements to the police, and never sign anything. Do not give written statements to the police. Do not give verbal statements to the police. Do not talk to them at all, except to say “My lawyer has told me not to answer any questions.” When they ask you a question, you ask to see your attorney. The sole exception: You must provide the police with your legal name, date of birth, and address for identification purposes. It is illegal for you to fail to do so upon request.
Rule No. 4: If you have been drinking alcoholic beverages, avoid the police if at all possible. If a police officer smells alcohol on your breath, you are very likely to be arrested for DWI (if you are driving) or public intoxication (if you are not driving). If you must have contact with a police officer when you have been drinking, try to keep the contact as short as possible and try not to let the officer smell your breath. Never under any circumstances argue with a police officer if you have been drinking. That’s a guaranteed trip to jail.
Rule No. 5: Do not be discourteous to police officers. Be polite. Police have far too much power in the streets for you and I to smart off to them. The streets are their “home field”. If you need to say something derogatory about the police, wait until we get them into the courthouse – that’s our “home court”.
I have not been arrested, but I have been accused of a crime. What should I do?
Use caution. Unless you are certain that the accusation is only a minor one and will not result in criminal charges, it is best to consult with an attorney. This is especially true if a law enforcement official is asking you to give a statement or cooperate in an investigation. You should consult with an attorney before making any statements. What you say, no matter how well-intentioned, can be misconstrued and may be used against you in a subsequent prosecution. Even if you are promised leniency in exchange for your cooperation, you can never retract what you have already said. Therefore, it is best to consult with an attorney prior to making any statements in order to ensure that your rights are protected.In addition law enforcement officials are allowed to LIE TO YOU. A police investigator can lie to you to attempt to gain your cooperation or confession. It is incumbent on you to consult with a professional criminal defense attorney before speaking with any government official!
Is it better to accept a plea bargain or go to trial?
What rights do I have and how do I assert them?
When your freedom is in jeopardy, remember that you have rights!!!!!!!!
If you are accused of a crime, your freedom is at stake. Whether or not you are ultimately convicted, you will be subjected to loss of freedom from the moment you are arrested.
You have the right…
- You have the right to have a lawyer with you when you are being questioned. Do not waive that right by speaking to the police or anyone other than an attorney.
- If you cannot afford an attorney, you have the right to have a lawyer appointed to represent you.
- You have the right to remain silent. The police will tell you this. It is good advice, even though the police would prefer that you waive this fundamental right. The police may tell you that waiving this right will look better to the court. NEVER make this decision without first seeking the advice of an attorney.
- You have the right to be informed that anything you say may be used against you in court.
- You have the right to be informed of the specific charges against you.
- You have the right to telephone a lawyer, a friend or a family member to notify them of your arrest.
- You have the right to have reasonable bail set in your case pending trial.
- You have the right to a public trial so that the state cannot convict you in secrecy.
- You have the right to a trial by a jury of your peers. The prosecutor also has the right to request a jury trial even if you do not want one. The jury will listen to all the evidence presented at trial and then decide whether or not the state has met its burden of proving the charges brought against you beyond a reasonable doubt. If a jury finds you guilty, you have the right to choose whether your punishment is decided by a judge or by a jury.
- You have a constitutional right to a speedy trial.
- You have a constitutional right to confront witnesses. This means that your attorney questions them under oath, so that the jury can consider and determine their credibility.
- You have the right to have witnesses testify on your behalf.
- You have the right to have every element of the alleged criminal offense against you proven beyond a reasonable doubt. This is the burden of proof that the prosecutor — the attorney who represents the state of Texas — has to fulfill to get you convicted.
Drug Charges FAQs
What does a “grand jury” do in a drug case?
A grand jury is a group of people called together by the prosecutor to gather information about suspected criminal activity by listening to testimony from witnesses and examining documents and other evidence. At the end of the proceeding, the grand jury decides whether there is enough evidence to put the defendant on trial for the drug charges. Grand juries are more likely to be convened in connection with more serious and complicated drug crimes, like conducting a drug-related criminal enterprise.Every felony charge in Texas must be presented to a Grand Jury. While I can present written or testimonial evidence, your attorney does not have a right to be present. These are sealed proceedings. The sole job of the Grand Jury is to investigate and to decide whether there was “Probable Cause” to make an arrest.
If the Grand Jury indicts you, the case will be assigned to the district court and plea negotiations and discovery processes will begin.
How does the prosecutor decide which drug cases to pursue?
The first thing the prosecutor looks for is a legally sound case, or one without any obvious defects that will get it thrown out of court, such as violations of the defendant’s constitutional rights or destruction of evidence crucial to the defense. The prosecutor next decides if there is enough evidence, with regard to both the quantity and the quality thereof, to make conviction probable. Finally, the prosecutor decides if prosecuting the case fits in with the office’s policy objectives, or whether a more informal disposition, like drug counseling or treatment, may be in order.In reality, if you are charged with a drug case, you will likely be indicted and the case will proceed. If there was an unlawful stop or search, I will prepare and argue a Motion to Suppress Evidence to attempt to get the evidence thrown out.
Even a teeny tiny amount of dope (imagine 1/10 of a Sweet-N-Low packet) will result in a felony charge.
Can a defendant plea bargain in a drug case?
Plea bargaining, which involves negotiating with the prosecutor to get the charges reduced and the punishment minimized, is allowed in drug-offense cases. For example, a person charged with three separate drug charges-possession, possession for sale, and transportation of drugs-may be able to negotiate the charge down to simple possession in exchange for an agreement to plead guilty to that charge. The prosecutor agrees to plea bargains in appropriate cases because the government simply does not have adequate resources to try every case, so both sides benefit from the bargain.A plea bargain may involve probation or pen time. While avoiding prison is the goal of all criminal defense when the charges are very serious, I may be able to negotiate a plea bargain for the minimum jail sentence. For some clients, jail is preferable than up to 10 years on probation.
Drug treatment may be a condition of probation. Be prepared to consider residential treatment if you are accused of multiple dope cases.
What defenses can be raised in drug cases?
The most common defense raised in drug cases is to challenge the search and seizure that resulted in the police finding the drugs. If the police violated the defendant’s Fourth Amendment search and seizure rights, the court will suppress, or throw out, the drugs as evidence. The prosecution will then have far less evidence to prove the case beyond a reasonable doubt and the case could even be dismissed.In marijuana cases, I may attempt to “nullify” the jury which means to ask the jury to disregard the law and to acquit you. If the jury develops sympathy for you and antipathy for the law, we may be able to get the jury to disregard the law and decide the case based on fairness and equity.
Can a defendant be acquitted if he or she was on drugs when the crime was committed?
What is the difference between parole and probation?
Are children charged with committing drug-related crimes prosecuted in the same manner as adults?
Do I need a lawyer to represent me even if I am innocent?
If I simply intend to plead guilty, why do I need a lawyer?
Even if you are guilty of the drug crime with which you are charged, it is imperative that you seek the advice of experienced counsel so that you can minimize your sentence and maximize your opportunities to move ahead toward a brighter future. Criminal defense attorneys are needed to equalize the balance of power between the defendant and the prosecution and to ensure that the constitutional rights that are guaranteed to all criminal defendants, whether guilty or not, are preserved.
Federal and juvenile referrals to trusted peers available on request. I can introduce you to an attorney who handles federal or juvenile dope cases and even stay on as a consultant if you prefer.
What should I do if I am stopped and arrested for DWI?
There is no uniform answer as to what is best to do, because every situation is different. The best guide is to use good common sense. Obviously, it is helpful to remain polite and courteous with the arresting officer, but this does not necessarily mean you should submit to all of his or her requests. You will be able to deal with such an encounter more easily if you know what to expect, what choices you will have, and understand the potential consequences of your decisions.
If you are detained under suspicion of DWI, you will be questioned on the roadside about your recent alcohol consumption. The officer may request that you perform sobriety tests and submit to a breath test. You have the right to refuse these tests, though that refusal may later be used as evidence of your guilt. If the law enforcement officer has reason to believe that you are guilty of an offense, he or she can arrest you. Typically, you will be handcuffed and transported to a jail.
At the jail, you will probably be asked to submit to a breath test. If you refuse to submit to a breath test, you should expect local police to videotape your performance of a series of sobriety tests and your responses to questions about your driving, alcohol consumption, and physical condition. Normally, a videotape will not be made if you choose to submit to a breath test.
Although you must answer questions pertaining to identification, you may refuse to answer any other questions. You may refuse to perform field sobriety tests, and, unless a life-threatening injury has resulted from a collision, you may refuse to submit to breath or blood testing. (The officer may obtain a warrant to forcibly obtain a sample of your blood but this can take up to 2 hours.)
The reliability of the instruments used to measure breath specimens to determine body alcohol concentration is doubtful. While state-paid experts routinely testify that the Intoxilizer 5000 is accurate and reliable, several independent experts have expressed contrary opinions. Consequently, the results may be inaccurately high or inaccurately low. If you have any doubts about your ability to pass the test, do not submit to it before you consult with an attorney.
If you submit to a breath test and ”pass” it, you stand a much better chance of winning your case. Sometimes, in fact, charges are not filed at all. If you submit to a breath test and fail it, you can later challenge the accuracy of the device at trial. However, you should realize that a trial in which a breath test is challenged, tends to be much more expensive than one which does not involve a breath test because it is often necessary to hire private scientific experts to assist at trial.
You do not have the right to refuse to be videotaped, but you may refuse to perform the sobriety tests or answer any questions asked of you other than those about your name, age and identification. If you believe that you can preserve evidence favorable to your case by complying with the officer?s requests, you should do so. If you have any doubts, you should request to speak with an attorney before answering any questions. If proper procedure is followed, the arresting officer will terminate the interview whenever you request to speak with an attorney. If the officer fails to do so, continue to request permission to speak with an attorney first.
Is it possible to defend a charge of Drunk Driving, Boating, or Flying?
Absolutely! Remember, the burden of proof is on the State to prove you guilty. Many juries have a natural empathy for defendants accused of DWI. The jurors may think, “There but for the grace of God go I.” Even with a breath or blood test above the legal limit, many DWI trials result in acquittals.
Probation for DWI results in mandatory classes, steep fines, monthly meetings with a probation officer and surcharges against your driver’s license. The penalty DPS imposes is $1,000.00/year for three years to maintain your driver’s license.
If you proceed to trial and we win, none of these punishments will be imposed on you!
The officers have a video on me, does this make my case more difficult?
Is it possible to defend a Drunk Driving Charge even if I took the breath test?
A lawyer told me once to always refuse the breath test, but the police have charged me anyway. Can the police do this?
Yes. In Texas, a person may be charged with DWI if an officer believes that person drives without the normal use of his mental or physical faculties due to alcohol or a drug or a combination of the two. In other words, if the officer believes your mental or physical faculties were at all less than normal you can be charged and tried for DWI. In fact the refusal can be used against you.
A good attorney can demonstrate that refusing tests is your RIGHT and you should not be punished for asserting this right. A skilled trial attorney will explain to the jury that submitting to an invasive or unreliable test may actually demonstrate rational thought and be evidence that your mental faculties were normal.
Situations may vary, but in most cases, the simplest, most effective defense is for the suspect to POLITELY refuse to participate in ANY testing or questioning. Just say no!
The only thing you must do in a DWI investigation situation is to provide the officer with your proper identification. All sobriety testing is voluntary on the part of the suspect.
The “Just Say No” defense is grounded in the simple premise that it is almost impossible to establish that someone is intoxicated if the individual merely sits (or stands) there saying nothing and doing nothing. It’s hard to screw up “doing nothing.”
This is NOT to suggest that you should drive drunk, or be irresponsible in operating a motor vehicle. No amount of legal advice can keep a drunk driver from being arrested, or killing themselves or someone else. Use your head, and drive responsibly! Generally speaking, if you are stopped for DWI in Texas, you are better off to politely refuse to do ANY testing.
The first test the police generally request is horizontal gaze nystagmus – the “follow the pen with your eyes” test. As soon as the police request you to perform this test, simply and politely refuse. Then refuse all other testing as well.
Many people seem to have trouble saying no to a police officer. The easiest way is to simply turn the tables on the officer: “Officer, which tests am I required to take? Oh? I’m not required to take ANY tests? Well, then, I know that I’m not intoxicated, but since I’ve never done these tests before, I’m not going to take them now.”
Some lawyers have stated that refusing all of the tests will result in you being arrested every time. This is clearly not the case. I have had several clients utilize the “politely refuse all tests” approach, and the officers let them drive off, or let them call a friend to drive them home. If you refuse to take any of the tests, even if the officer DOES arrest you, you stand an excellent chance of beating the case. No tests basically equates with no evidence, and no evidence almost always leads to a not guilty verdict.
If you TAKE the tests, you basically are giving the police all of the evidence they need to convict you, and you are handing it to them on a silver platter!
I refused to take the breath test. Can the fact of my refusal be admitted in court?
YES. Just like you should not take any tests, you shouldn’t answer any QUESTIONS either. Remember, anything you say can and WILL be used against you.
While there are driver’s license suspension consequences for failing or refusing to take a breath or blood test. Just IGNORE those driver’s license consequences. There is NO driver’s license consequence which is worse than a DWI conviction!
License suspension problems are temporary at worst, and in most cases you can easily obtain an occupational license to replace your regular license. License suspensions are temporary. DWI conviction are forever!
I had an accident, and officers asked me to submit to a blood test. Can they do this?
Is it possible to defend a blood test case?
Yes. Although blood test cases are particularly demanding of a lawyers skill, these can be defended in a variety of ways. Such cases are unique and demand a complete investigation by a skilled lawyer.
Was the blood taken in a sterile environment? Was the machine testing the blood calibrated and reliable? Was the blood taken by an approved person with credentials and experience? How was the blood transported and stored?
These are all questions which could affect the outcome of your blood case.
I was charged with DWI even though I was taking medication under doctor’s orders. Can they do this?
Yes, but there are a number of proper ways to handle these types of cases. Again, these demand a lawyer’s knowledge, skill and experience.
Be aware that the offense of DWI or Driving Under the Influence can be prosecuted even if you have consumed ZERO alcohol. The law states that the accused was driving while intoxicated by reason “of the introduction of alcohol, drugs, dangerous drugs or a combination thereof.” You can be arrested, tried and convicted even if the medicine you were taking was prescribed by a licensed doctor if the medicine affects your “normal mental or physical faculties.”
What are the field sobriety tests?
DETAILS REGARDING DWI SOBRIETY TESTS:
There are three standardized field sobriety tests (SFSTs):
The police have you follow a pen or a light with your eyes, to see if your eyes follow smoothly (a sign of sobriety) or if they jerk repeatedly (supposedly a sign of intoxication). I advise that, before doing this test, you ask “What exactly are you looking for in my eyes?” They should tell you “Jerking movements, or the lack thereof.” Then you should state: “Can’t head injuries cause those same jerking movements, and some medications?” Yes, they can. “Well, then, I’ve had head injuries before, so I’m not going to do that test.”
The Three (Supposed) Indicators of Intoxication on HGN:
- Eyeballs jerking as the pen is moved horizontally
- Eyeballs jerking prior to 45 degrees when the pen is moved very slowly
- Eyeballs jerking when the pen is held out to the extreme left and right
There is plenty of scientific literature establishing that eyeballs jerk like this when alcohol is present. However, in my opinion HGN shouldn’t be used as a sobriety test because the eyes in some people jerk at alcohol concentration levels half of the legal limit, and sometimes even lower than that. There are 6 possible “clues” that the police look for in HGN testing. Their training says that 4 or more clues indicate intoxication. But a study done by the National Highway Traffic Safety Administration (NHTSA) shows that some people show 4 clues at alcohol levels less than 25% of the legal limit! (The legal BAC limit is 0.08, and the NHTSA HGN robustness study shows one person having 4 HGN clues at 0.016 BAC!)
2. The WAT (Walk And Turn):
You may have heard this test being called “walking a straight line.” In the DWI industry, it’s referred to as the walk and turn, or the “WAT”. The police ask you to stand on a line with the heel of your right shoe touching the toe of your left shoe. You are asked to place your arms straight down to your sides (as if they were against the seam of your pants) and maintain that terribly awkward position for about 90 seconds while they give you additional instructions. You are then instructed to take 9 steps out and 9 steps back, counting each step out loud, looking at your feet, keeping your arms to your sides, touching heel to toe on each step, and turning in a very specific unnatural way. There are the eight clues, or indicators of intoxication, that the police look for during the walk and turn:
- Starting before being told to do so
- Failing to maintain the starting position until told to begin
- Using your arms for balance
- Stepping off of the line
- Stopping during the test
- An improper turn
- Failing to touch heel to toe.
- Taking an incorrect number of steps
3. The OLS (One Legged Stand):
The police ask you to stand on either leg with your other leg straight out in front of you, six inches off of the ground, with your toe pointed and parallel to the ground. Your arms are to be held straight down to your sides (as if against the seam of your pants), as you count to 30 by stating “one- thousand one, one-thousand two, one-thousand three, etc.”
The Four Supposed Indicators of Intoxication:
- Raising your Arms for Balance
- Putting your Foot Down
OTHER COMMON (BUT NOT STANDARDIZED) SOBRIETY TESTS: Some police will ask the DWI suspect to perform additional sobriety tests. Although the following tests are not “standardized,” they are still commonly used:
Reciting the alphabet. You’d be surprised at how many people have difficulty reciting the alphabet. To make it more difficult, the police often ask the suspect to start and end at a designated place somewhere in the middle, often asking you to start at the letter C or D, and ending with the letter S or T. Unless you have practiced reciting the alphabet lately, I’d advise not doing it as a sobriety tests. Better yet, practice it until you can do it right.
Counting backwards, from one nondescript number to another, typically from 38 to 22. The hardest part of this test seems to be remembering where to stop.
The finger count: The police have the suspect touch his thumb to each of his fingers, counting each of his fingers as he touches it, one thru four, and then backwards from four to one.
The Rhomberg stationary balance test: The police have the suspect close his eyes, tilt his head back, put his arms straight down to his sides, and estimate when 30 seconds is up. I wouldn’t recommend you doing this test under any circumstances. It almost always makes people look bad.
Do officers have standards for judging these tests?
Yes. In fact, the standards are nationally recognized and adopted. Likewise, its proper for juries to judge how professional or unprofessional an officer is by how well the officer adhered to the standards in your situation.
Did the officer give proper instructions? Did the officer demonstrate properly the tests? Did the officer ascertain that you understood the instructions? Did the officer correctly “score” the tests? Does the officer have proper training and qualifications?
It is possible to win a driving license suspension hearing or an “ALR?”
Yes. In fact, these hearings are a gold mine of information for the skilled DWI Lawyer. Always hire a lawyer who will represent you in these hearings AND who will subpoena the officer to the hearing!
If we decide it is in your best interest, representation at the ALR Hearing will be included in your fees.
The officers confiscated my driver license. If you win my driving license hearing, will you demand the officers return my license?
I drive in my employment. If I lose my driving license suspension hearing, but win a verdict of ‘not guilty’ in court, can my driving license suspension be vacated at that time?
Can my criminal record be ‘expunged’ after being charged and acquitted with DWI as well as having my driver license suspension lifted?
If you are found NOT GUILTY, not only do you have the right to have your record expunged or erased but your driver’s license suspension will also be lifted.
In most cases, I charge $3500.00 to represent you in all aspects of a misdemeanor DWI short of a trial. A refusal trial is typically $7500.00 and a breath or blood trial is typically $10,000. Expert witness fees are additional and are recommended in all breath or blood trials and in some trials that hinge on Field Sobriety Test results.
In many cases, it is less expensive to proceed to trial than to pay all the probation fees, required DWI classes and license maintenance fees (surcharges). And in almost all DWI trials, the punishment after trial is probation or credit for the time you have already served in jail.
Typical punishment for a “plea bargain for probation” in a DWI trial is:
- Two years probation
- Reporting to probation once per month
- $60 per month probation fees
- up to a $2,000 fine
- An 8 hour, DWI Education program ($50)
- A one hour drug and alcohol evaluation ($25)
- A three hour MADD Victim Impact Panel ($25)
- 24 to 80 hours of community service restitution
- A $25 payment to Crime Stoppers
- Random urine tests for drug screening
- And the possibility of being revoked and sent to jail for 120 to 180 days.