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This is the guy that refused….


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BWI – Boating While Intoxicated

BWI – Boating While Intoxicated

With summer activities kicking into full gear and people beginning to relax on their boats throughout the Austin lake ways of  Travis, Williamson, and Hays counties it’s a great time to discuss Boating While Intoxicated.

Enjoy your time hanging out at Devil’s Cove, Carlos & Charlie’s or The Oasis on Lake Travis — but be careful while consuming alcohol because you could get more than just a bad sunburn.

Many people are unaware that Boating While Intoxicated (BWI) is a crime but it is and was responsible for more than 300 arrests in Texas in 2010. Under Texas Penal Code § 49.06, BWI is a Class B misdemeanor. It is illegal to operate a boat with a Blood Alcohol Content (BAC) of 0.08 or higher (the same BAC that will result in an arrest for a DWI). You may also be charged with BWI in Texas if you are operating a boat and do not have normal use of your mental or physical facilities due to alcohol or drugs.

BWI FACTS:

  • A BWI carries the same penalty as a DWI.
  • A first conviction can result in a fine up to $2,000 and/or jail time up to 180 days.
  • A second conviction can result in a fine up to $4,000 and/or jail time up to one year.
  • A third conviction can result in a fine up to $10,000 and/or jail time of 2-10 years.
  • If you are found boating while intoxicated on a vessel that has an engine over 50 horsepower (this includes boats and jet skis), your license will automatically be suspended.
oasis at lake travis

Image by Tara Deck

Unlike a DWI an officer is not required to have probable cause or reasonable suspicion to stop your boat and test you for suspected impairment. On a boat, you can be stopped at the officer’s discretion to check the boat for safety floatation devices. The officer may then proceed to conduct a sobriety test based on factors he witnesses while on the boat such as smelling alcohol on breath, bloodshot eyes or a red face. Some of these factors could easily be explained as sun exposure but will frequently lead officers to conduct field sobriety tests. Officers may also stop boaters for other reasons including: driving the boat too fast for the waterway, aggressive turns, or failure to turn on lights and other equipment.

To investigate whether a person was boating while intoxicated an officer will likely perform some sobriety tests on the water to determine if there is reason to conduct a further investigation on land. The tests performed “on the water” will likely include such things as reciting the alphabet and divided attention tests (including hand-palm touches or a finger count). Officers are instructed to wait 15 minutes before administering sobriety tests on land, so that a person may regain his equilibrium after being removed from water to land.

Ultimately, the best thing you can do to protect yourself from being charged with a BWI is to appoint a designated driver or don’t drink and drive.

If you have any questions about what constitutes Boating While Intoxicated or have been charged with an alcohol related offense, feel free to visit us on Facebook and post a question, leave a comment or fill out a free case evaluation form with no obligation.

 

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Criminal Records: Expunged or Sealed?


State Seal of Texas

Image via Wikipedia

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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Public Intoxication


Man passed out from drinking.Public Intoxication is a Class C misdemeanor, the same as a general traffic ticket, and punishable by a fine up to $500 with the possibility of jail time up to 12 hours. Some may consider a Public Intoxication charge a minor offense since it is only a Class C misdemeanor but having this on your record could very likely affect your future by hindering job or education opportunities.

According to Texas Penal Code § 49.02, if a person appears in a public place while intoxicated to the degree that he may endanger himself or another person he is guilty of Public Intoxication. Intoxication means that a person lacks the normal use of mental or physical abilities because of the presence of alcohol, a drug (prescription, controlled, or even over-the-counter), a combination of substances, or any other substance in the body.

A public place means any place to which the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartments, office buildings, transport facilities, and shops. A person could be charged with Public Intoxication in a bar or even riding as a passenger in a car. At the time of the offense, the officer could merely issue a citation and release the individual to the care of an adult but an officer may arrest the person and have them remain in jail for up to 12 hours.

If a minor (under the age of 21) is arrested for Public Intoxication, the consequences do not stop with a mere fine. A minor’s license may be suspended for 30 days. A minor’s second offense can result in a suspension of 60 days and a third can result of 180 days.

Being arrested for Public Intoxication can be both a humiliating and traumatic experience but if you find yourself in that position, make sure you find an attorney that you can trust to do everything possible to help fight for you and win your case. There are good criminal defense attorneys serving Williamson, Travis, Hays, Collin,
Dallas, and Tarrant Counties that can assist you with your legal needs.

If you have any questions about what constitutes public intoxication or have been charged with any other alcohol related offense, feel free to leave a comment or visit us on Facebook and fill out a free case evaluation form with no obligation.

 

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UCW or Possession of Prohibited Weapon


brass knuckles
Image via Wikipedia

Although Texas is considered a gun friendly state, it is unlawful to possess or carry many types of weapons in the Lone Star State. The laws concerning carrying a weapon can often be confusing and puzzling. This article is to help clarify those laws by explaining what it means to be charged with possession of a prohibited weapon or unlawfully carrying a weapon as we frequently handle these types of cases in Williamson, Travis, Hays, Collin, Tarrant, and Dallas Counties. Under Texas Penal Code § 46.02, it is a Class A misdemeanor for someone to intentionally, knowingly, or recklessly carry on or about his person a handgun, illegal knife or a club.

Examples of illegal knives and clubs include:

  • a single-edged knife with a blade length in excess of 5 ½ inches
  • a double-edged knife, a sword, or a spear
  • a club or anything made or adapted to strike someone and cause serious injury.

A weapon must be found on or about your person in order for you to be charged with Unlawfully Carrying a Weapon. The weapon must be within your reach without physically having to change your position. What this means is that you cannot be charged if a weapon was simply found somewhere in your vehicle, such as your trunk, if you are sitting in or driving your car. This only applies to weapons that are legal to carry in Texas. On the other hand, some weapons are illegal to own or have in your possession at all.

Some weapons that are illegal to own in Texas are:

  • switchblade knives (including butterfly knives),
  • brass knuckles
  • sawed-off firearms
  • short-barreled firearms,
  • explosive devices and
  • machine guns

If you are arrested for unlawfully carrying a weapon or possession of a prohibited weapon, your weapon will most likely be taken from you and placed into evidence. If your case is dismissed or you are acquitted of the charge, it is possible to get your weapon back. As long as the weapon is not illegal, the judge may order the return of the weapon to you once it is released from evidence. However, depending on the outcome of the case it is also possible that the judge may order that the weapon be destroyed.

Possible punishments for unlawfully carrying of a weapon or being found in possession of a prohibited weapon include:

  • up to one year in county jail
  • a fine of up to $4,000
  • and possibly two years of post-conviction community supervision or
  • deferred adjudication with the requirement to complete up to 200 community service hours

If the charge is unlawfully carrying a weapon in a weapon-free zone, the offense is treated as a state-jail felony. If the offense is committed on any premise that is licensed or issued a permit for the sale of alcoholic beverages, the offense is then considered a third degree felony.

It is always under unfortunate circumstances that people must contact a criminal defense attorney but if you find yourself in that position, make sure you find an attorney that you can trust to do everything possible to help fight for you and win your case. If you have any questions about what constitutes Unlawfully Carrying a Weapon or have been charged with Possession of a Prohibited Weapon, feel free to leave a comment or visit us on Facebook and fill out a free case evaluation form with no obligation.

 

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Driving Under the Influence of Alcohol by Minor


DSCF7933

Image by beardenb via Flickr

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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What Happens After a Dwi Arrest In Texas?


ArrestedAdministrative License Revocation: To preserve your right to drive in Texas, you must request a hearing within 15 days of when you were served with a Notice of Suspension(usually the date of arrest). If you timely requested a hearing to contest your license suspension, you will be able to continue driving until the hearing. If you lose at the hearing, you can not drive after the hearing. It is our opinion you should requests the officer’s presence at the hearing. Crucial defenses can be developed at the hearing. If your license is suspended at the hearing, you may be able to secure an occupational license to drive.

lst Appearance: If you have been arrested and released for a misdemeanor DWI, you will be given a date to return to court (usually 30 days after your arrest). If you hire an attorney, the attorney can usually make this appearance for you, so that you do not have to attend. During this 30 day period, the case is sent to the County Attorney‘s office for further investigation. The County Attorney then prepares an information and files this with the County Clerk, and your case is set on the court’s docket.

Pre­trial Conference: Your attorney will discuss your case with the County Attorney to discuss the best possible resolution of your case. This conference will happen about 8­10 weeks after your 1st Appearance date.

Suppression Hearing: The Court may suppress some or all of the evidence against you if your constitutional rights have been violated. Your attorney will file motions to suppress. It occurs anywhere 6 weeks to 3 months after the pre­trial conference.

Trial: You may either request a bench trial wherein the court hears the case or a jury trial wherein a jury of your peers hears the case. If the case is a misdemeanor, the trial will be to a jury of six. If the case is a felony, the jury will be to a jury of twelve.

Sentencing: The Court imposes a sentence after a conviction at trial or after a plea bargain is accepted and a plea entered. Sentences may include jail time, numerous fees, fines, community service, alcohol classes and fines.

 

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