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Category Archives: Legal Rights

Do I Have to Talk to the Police?


In the United States, a person who is going to...

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The simple answer is no!

There are different factors in every case, so whether you have to talk to the police if you are detained for any reason, depends on the facts of the situation, the circumstances, the location, etc.  We have a outlined a few guidelines that are smart to follow if you are ever pulled over or detained by the police for questioning.

There are many important points to remember during any interactions with law enforcement, whether you have committed a crime or not. Most importantly you should always remain polite and courteous.

What You Should Never Do When Dealing with Law Enforcement:

  • Do not interfere with or obstruct the police during any investigation as this could lead to criminal charges being filed against you. 
  • Never lie or give false documents to the police as this is also a crime.
  • Do not run from the police. 
  • Do not argue or resist arrest, even if you are innocent or you believe the police are violating your rights. 

Your Legal Responsibilities to the Police When Being Questioned:

  • Sometimes an officer may stop and question you on the street for no apparent reason; this is perfectly legal. 
  • You are not required to answer their questions so long as it remains a voluntary exchange. 
  • You are permitted to end the interview and walk away at any time as the conversation is consensual. 
  • If you are unsure about the encounter, you are permitted to ask the officer if you are free to leave.  If you are free to leave, calmly and politely walk away.  
  • If an officer however pulls you over while driving or makes it clear that you are not permitted to leave, you should not leave but remain where you are and act politely and courteously.  If you do leave, you could be charged with evading arrest.  

What are My Legal Rights?

If you are stopped and the police ask to search your car/vehicle, you are permitted to say no and you should.  However, the police may ultimately search the car either by obtaining a warrant or if they believe your car contains evidence of a crime.

You have the right to remain silent.  Use it.  Police may tell you that they want to hear your side of the story or that by not talking to them you are making yourself look guilty.  You should not listen to this. You should invoke your right to remain silent and ask for an attorney.  Remaining silent will not make you look guilty, nor does asking to have an attorney present.

Having an attorney with you at an interview with the police will help your case, as the attorney will be able to instruct you as to what questions you should answer and as how to answer the questions while still telling the truth.  When you express your desire to remain silent and to have an attorney present, it is important to remain civil and polite to the police.  Whether you are guilty or innocent, in most cases you should remain silent.

If you are arrested and taken to jail, make sure not to discuss your case over the phone as your phone call may be recorded; only your phone conversations and meetings in jail with your attorney are not allowed to be listened to by the police.  However, if you have been detained or arrested and an officer asks you for your name, address, or birth date, you should provide him with this information as your refusal to do so would be a crime for Failure to I.D.

What About My Miranda Rights?

A lot of times people are concerned about being read their Miranda rights/warnings.  Miranda warnings are required to be read when a person is in custody and is subject to interrogation.  This means that Miranda warnings are only required to be read to a person when they have been arrested and officers are either expressly questioning them or saying things to the person to elicit an incriminating response from the person.  However, just because you may not have been read your Miranda rights does not mean your case will automatically be thrown out.  Miranda warnings deal with the admissibility of confessions.  If you confessed to a crime while in custody and you weren’t read your Miranda rights, then the confession may be considered inadmissible in court.  In order to invoke your Miranda right to an attorney you have to be clear and unambiguous that you do not wish to talk to the officers any further until you have spoken with an attorney.  Once a person invokes their right to an attorney, the police must listen to their request and cease interrogation immediately.  However, an officer may ask you standard booking questions such as your name and address without it being considered a violation of your Miranda rights.  Unfortunately, anything a person who is not in custody or under arrest voluntarily says to the police may still be used during court proceedings despite the fact Miranda warnings were not issued.

What If I’m a Juvenile and I get Stopped by the Police?

Questions also arise in the case of juveniles and whether a parent or guardian’s presence is required.  A common misconception is that a parent/guardian has to be present whenever officers wish to speak to juveniles.  However, police may speak to a juvenile at school without the presence of a parent/guardian.  A parent or guardian’s presence is only necessary if the child is being talked to at a juvenile center.

If you or someone you know has been contacted by the police about a potential charge or if you have any questions about what you should say to the police, contact our office immediately so that we may help you fight your case or even prevent you from being charged.

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Texas Statewide No-Refusal Weekend – first of its kind in the nation ever!


Fireworks display at the UT tower during Diwal...
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Everyone loves the Fourth of July.  It has become the unofficial celebration of summer as people across the United States enjoy the very essence of independence and freedom.  Everywhere you go you see families’ barbequing, neighborhood block parties and friends hanging out wherever it’s cool – lakes, pools, rivers, beaches – everyone enjoying a good time just waiting for the sun to go down and the fireworks to start. Unfortunately, the days following the Fourth of July, many of those same people reunite at hospitals, police stations, attorney offices – and even more unfortunate, funerals.

Last year in Texas alone, officers responded to 337,000 crashes over the Fourth of July weekend.  In 2009, the “no refusal holiday program” was created to enforce Texas DWI laws in order to help lower alcohol related accidents.  The program allows law enforcement and prosecutors to designate a holiday weekend, such as New Year’s Eve, Halloween, or Super Bowl weekend, where law enforcement officers can stop a driver for DWI suspicion and take a blood sample to test for Blood Alcohol Content (BAC).  According to a press release Tuesday in Austin regarding the statewide program— “drivers also can be arrested with a BAC below 0.08 when a law enforcement officer has probable cause, based on the driver’s behavior, to believe the driver has lost the normal use of mental or physical faculties due to the introduction of alcohol or any substance into his or her body.”  Along with extra patrol on the road, there will also be additional enforcement on the water all across the state enforcing no refusal.  So not only are you at risk drinking and driving, but drinking and boating as well.

The concept of this program is simple – you cannot refuse.  If you are stopped for a busted tail-light, not using your blinker, not wearing a seatbelt, speeding or any other minor traffic violation and the officer suspects that you are intoxicated you will be required to have your blood drawn or take a breathalyzer test .  During “No Refusal Weekends,” judges are on standby to sign a warrant permitting the police to take a blood sample after a suspected driver refuses to submit to a breath or blood test.  Basically, if you drive on a “No Refusal Weekend,” and an officer suspects you have been drinking, he can obtain a sample of your blood to test for BAC whether you like it or not.

You might wonder how law enforcement is able to do this without violating your rights.  When you obtain a Texas driver’s license, you have implicitly consented to provide a sample of breath or blood when it is requested by law enforcement agents during a DWI arrest but you may refuse until the law enforcement agent obtains a valid search warrant.  Under normal circumstances, an officer has to wait for a warrant to obtain a sample of your blood and judges are not always readily available… unlike “No-Refusal Weekends” when judges are standing by to issue these warrants at a moment’s notice.

The best thing you can do if you have been drinking during a “No Refusal Weekend” is to call a cab or have a designated driver.   If you have any questions about your arrest or rights after a DWI, DUI, BWI or any other alcohol related offense in Texas please join us on Facebook or post a comment anywhere on this blog and an experienced Texas attorney will be happy to assist you.

KEY MESSAGES:

  • During the July 4th holiday, alcohol is a major factor in fatal crashes.
  • Motor vehicle traffic crashes killed 410 people during the Fourth of July holiday period in 2009.  Of that number, 40 percent involved drivers with blood alcohol concentrations (BAC) of .08 grams per deciliter or higher.
  • Alcohol-impaired-driving crashes killed 10,839 people in 2009, accounting for 32 percent of all traffic-related deaths in the United States.  That’s an average of one alcohol-impaired-driving fatality every 48 minutes.
  • Beware: the rate of alcohol impairment among drivers involved in fatal crashes in 2009 was four times higher at night than during the day.

Drunk Driving. Over the Limit. Under Arrest.

  • This summer don’t let your 4th of July end in an arrest—or even worse, death. Make smart decisions. Plan ahead so you can ensure a safe way home.
  • Cops are cracking down, and there will be no second chances.  If you are caught driving with a BAC of .08 or higher, you will be arrested.
  • Remember, don’t ever get behind the wheel of a vehicle when you are impaired, and don’t ride with a driver who has been drinking.
  • Whether way too many or just one too many, it’s not worth the risk. Drunk driving creates serious consequences.
  • Alcohol impairs many of the skills that safe driving requires, including judgment, concentration, comprehension, coordination, visual acuity and reaction time.
  • Driving with a BAC of .08 or higher is illegal in every state. Yet too many people still ignore the law. According to the FBI’s Uniform Crime Report, more than 1.44 million people were arrested for driving under the influence during 2009.
  • The tragedies and costs from drinking and driving impaired do not just end at the potential death, disfigurement, disability and injury caused by impaired drivers.
  • People who break the law often face jail time, the loss of their driver licenses, higher insurance rates, and dozens of other unanticipated expenses from attorney fees, fines and court costs, car towing and repairs, lost time at work, etc.
  • Driving impaired or riding with someone who is impaired is not worth the risk. The consequences are serious and real. Not only do you risk killing yourself or someone else, but the trauma and financial costs of a crash or an arrest for driving while impaired can be really significant and not the way you want to celebrate the July 4th holiday.

Remember: Drunk Driving. Over the Limit. Under Arrest.
(information provided by Traffic Safety Marketing
a program sponsored by the National Highway Traffic Safety Administration)

 

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This is the guy that refused….


 

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Criminal Records: Expunged or Sealed?


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Having a criminal record can be a huge obstacle when doing many things that most people take for granted. Most companies run background checks on all prospective employees so having a criminal record can prevent you from being hired for a job you may otherwise be perfect for. Depending on what type of case and disposition you received it is possible that a Texas attorney can help you expunge your criminal record.

Figuring out whether you can have your criminal record sealed or expunged can be a complicated issue and it is essential that you hire an attorney that is knowledgeable about the different methods of criminal record sealing. Depending on the results of your case; whether you were convicted, arrested, detained or if your case was dismissed – there are many factors to consider. Here are the two options available when it comes to having your criminal record sealed.

Expungement vs. Sealing

Most people believe that expunging and sealing criminal records have the same meaning, but there are a few differences. When a criminal record is sealed the court file is hidden from the general public but may still be available to certain government agencies and law enforcement. When a criminal record is expunged the criminal record is completely destroyed as if the crime never occurred. All of the records associated with the offense, such as the court records, arrest record and the criminal history are erased. Not every criminal offense can be expunged. The only circumstances in which you can get an expunction is if you were acquitted of the crime and found not guilty, or if your case was dismissed.

Expunction vs. Non-Disclosure:

The legal term for having your criminal record sealed is called a non-disclosure. A motion for a non-disclosure is normally granted after you have completed a deferred adjudication, which would make you ineligible to have your record expunged. Non-disclosure normally requires a certain waiting period after your conviction. These waiting periods normally range from two to five years depending on the nature of your offense and whether you were charged with a felony or misdemeanor. There are also some minor offenses that are eligible for non-disclosure immediately. If your petition for non-disclosure is granted, government and state agencies are prohibited from disclosing the information to the general public, but can be used if you are prosecuted again for another crime.

State Laws vs. Texas Laws:

Depending on where you live it is possible that your state does not allow any records to be sealed or expunged. Some states only allow criminal records to be sealed but not expunged and others allow expunction and non-disclosure but not for more serious felony offenses such as murder, kidnapping, rape and other sex-related crimes.

Below are the current Texas Laws that deal with destroying and concealing criminal records. Legislature can change at any time, so it is very important that you find a knowledgeable attorney in your state that can guide you through the complex laws and give you peace of mind that your past is completely behind you!  If you have any other questions or would like a free evaluation of your case, find us on Facebook and we would be happy to address your concerns immediately!

TEXAS STATUTES REGARDING EXPUNCTION AND NON-DISCLOSURE

 
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Posted by on June 16, 2011 in Legal Rights

 

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How Do I Handle an Outstanding Warrant in Texas?


Wanted: Charlie Brown
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Having an outstanding warrant for your arrest can be an alarming and daunting thing, understanding the process of resolving a warrant can help alleviate some of that anxiety.  Here are some basic guidelines on how to handle an Outstanding Warrant in Texas:

  • If a warrant has been issued for your arrest, you are typically required to turn yourself in to resolve the warrant.  If you do not turn yourself in, you could be arrested anywhere at any time, no matter the offense, to resolve the warrant.
  • Once you have turned yourself in, or been arrested for the warrant, it will be determined whether you will be given a bond and if you are, what the bond amount will be.  Some warrants are issued with a recommended bond amount. This amount will likely be the bond you pay after you turn yourself in.
  • For warrants issued without a recommended bond amount, you will go before a magistrate who sets a bond amount, this typically occurs the following morning.  Without a recommended bond amount on your warrant, you will have to wait in jail until the morning before you can see a magistrate.  There are no particular types of cases that require you to go before a magistrate; it can be for any warrant that was not issued with a recommended bond amount already set.

After you know what amount has been set on your bond, there are a few options you can take.

  • You can pursue a cash bond which entails going through the jail to pay the full bond amount.  Once your case is closed, the bond amount is refunded in full.
  • Another option is to go through a bond company to bail you out of jail.  A bond company will typically charge 10% to 12% of the bond and is a non-refundable fee.
  • If you cannot afford to pay the bond or go through a bond company, you can wait out your time in jail until your case is resolved and possibly receive time served towards your case.

After you have been arrested for the accused offense, the court will set a hearing date for you to contest the charges against you.  At this point you should hire a criminal defense attorney to guide and assist you in resolving your warrant and in your court proceedings.   If you have questions about a warrant that has been issued for your arrest in Colin, Travis, Hays, Dallas, Tarrant, or Williamson County, you can visit us on Facebook for a free case evaluation with absolutely no obligation.

Helpful Links for Outstanding Warrants:

Travis County Warrant Search: https://public.co.travis.tx.us/wow/default.aspx

Austin Police Department Warrant List: http://www.ci.austin.tx.us/police/warrants/warrantsearch.cfm

City of Fort Worth Warrants Online: http://www.fortworthgov.org/applications/warrantsonline/

Outstanding  Warrants: Texas Government Code § 404.058

Texas Law Enforcement Agencies and Courts – Call for a Texas Warrant Search

 

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Driving Under the Influence of Alcohol by Minor


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My son was charged with Driving under the Influence?  What does this mean?  What do I need to know? 

Texas law states that a minor (under the age of 21) commits an offense of a DUI (a Class C misdemeanor) if he operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor’s system.  This is a much lower standard than is required to arrest a person for a DWI.  A detectable amount means that a minor does not have to have a Blood Alcohol Content level of .08 or higher like with a DWI, but can be arrested for simply the smell of alcohol on his breath.

More than likely your son was either issued a citation — along with a notice of license suspension for this charge or he may have been arrested; both are permissible by law.  During the initial traffic stop, after the officer determines that the person they are investigating is in fact a minor, he may issue a citation for a less serious offense or decide to conduct field sobriety tests if he has reasonable suspicion to believe the minor was severely impaired.  If the officer arrests him for not satisfactorily completing the field sobriety tests, he may also request a breath or blood specimen to test his blood alcohol content.  When your son was charged with DUI, his license will be suspended.  The suspension is the same administrative license revocation (ALR) process that is used in DWI cases.  There is a 15 day period to request a hearing after being issued a citation or being arrested for a DUI to contest the license suspension.

If this was the first time the minor was stopped for drinking and driving, the judge may order:

If he doesn’t complete the conditions set out by the judge within the allotted time, then his license may be suspended for up to six months.

If this isn’t the minor’s first time being convicted of a DUI then the judge may order:

  •  A fine between $500 and $2,000;
  • 40 to 60 hours of community service,
  • and a sentence of  up to 180 days in jail.

If your son is under the age of 18, the court may require you or another parent/guardian be present with your son at every court appearance. The court may also require you attend the alcohol-awareness class with your son.   However, the court may allow an attorney to appear on your son’s behalf at the court appearances.

Just because he is under the age of 21 does not mean he will automatically be charged with a DUI rather than a DWI. An officer may arrest a minor for the more serious offense of DWI if the circumstances warrant such a charge.

If the minor had a BAC of .08 or greater he could be punished with the same penalties that apply to a DWI:

  • a $2,000 fine,
  • 72 hours to 180 days in jail,
  • and a driver’s license suspension of 90 days to one year.

Having your son or daughter arrested or issued a citation for a DWI or DUI can be very stressful and nerve racking for you as a parent.  You need to find a reputable attorney that will fight hard to have your child’s case dismissed and will fight as if it were for their own child.

 

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You Have the Right to Remain Silent


Right to SilenceIt cannot be emphasized enough that in the United States, a person gives up Fourth and Fifth Amendment rights the moment they begin cooperating with police in any way prior to arrest. These rights technically cannot be reclaimed after an arrest has been made and Miranda rights have been read. this is true because police do not have to advise a person of his/her rights until after he/she incriminates themselves and/or are arrested. In other words, if the person cooperates prior to being arrested, then they have surrendered most of the rights of which the police are advising that arrestee when they are reading them their Miranda rights.

Here is an excerpt from Wikipedia about protecting your right’s that helps to illustrate this point:

 “In the U.S., the only way for one to protect one’s rights fully is to refuse answering any questions beyond giving one’s name and identifying papers if requested and to refuse giving consent to anything (such as a search) prior to one’s arrest. Law enforcement officials in the United States rely heavily upon the subtle intimidation of their position and power and the ignorance of citizens to their rights in order to make people incriminate themselves. Police do not have to tell civilians the truth on any subject. They can make any promises and claims they like in order to induce a person to incriminate herself or himself or to allow the police to perform a search, and police are not bound by anything they promise to suspects or witnesses (i.e. promises of aid or protection).United States citizens must know their rights in order to avoid losing them by inadvertently giving them away.” – Taken from: Wikipedia “Right to Silence”

In other words the rights guaranteed by the Fourth and Fifth Amendment are not automatically invoked by the accused. In fact the opposite is true. If a person does not actively invoke their rights then their rights are automatically surrendered. This is why it is imperative that anyone who is arrested or accused of a crime should exercise their right to remain silent! Thankfully, not answering any questions asked by the police is not considered incriminating in and of itself in the U.S. legal system. Therefore, a person who finds themselves arrested and/or accused of a crime in the U.S. should answer any police questions with a polite request for an attorney. When interrogated simply and politely say “I would like to speak with a lawyer” and contact a criminal defense attorney as soon as it is possible.

This advice may sound counter-intuitive. Especially since we are taught all of our lives that the police exist to protect and serve us. Against these long established beliefs of police benevolence it is important to remember what are trained to do with people they arrest or accuse of a crime. Police officers are trained to investigate and gather evidence to build a case against the people they arrest or accuse of a crime. If you are arrested the police are not trained to be your priest, pastor, personal coach, or counselor. In short, if you are under arrest the police are not your friend.

Further compounding this issue is the fact that police officers are not infallible. They are flesh and blood human beings who make mistakes just like the rest of us. As such it is all too common for the police to bend the rules and take certain statements out of context in order to gain the upper hand and get a conviction. The police know that most people willingly provide them with the evidence needed for a conviction through confessions and statements taken during the interrogation process. It is for this reasons that while it is always a good idea to have a respectful attitude when dealing with the police, it is equally important to answer any questions they have in a controlled setting with access to competent legal advice.

After all, the State of Texas and United States Attorney’s Office take advantage of their huge budget by being able to have access to a large staff of lawyers, police officers, and crime lab experts to help prosecute their cases. This means that it is highly unlikely that a person who is accused of a crime will be able to challenge the government’s case without competent legal representation. Without an attorney the jury will more often than not accept whatever evidence the prosecutor produces.

 
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Posted by on June 7, 2011 in Legal Rights

 

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