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Do I really need to hire a criminal attorney?


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Assault, DWI, theft, weapons charges? Do I really need to hire a criminal defense attorney to defend me or can I defend myself?

You do not have to hire a criminal attorney to defend you if you have been charged with a misdemeanor or felony — the better question is should you?  The bottom line is yes, you really should.  Sometimes, even when faced with a minor crime such as a traffic violation (class C misdemeanor) – the most important thing you need to consider is do you want this charge on your permanent record?

In today’s competitive job market it is difficult, to say the least, to secure employment even if you have a sterling reputation.  Almost all potential employers will tell you that even if you are lucky enough to make it as a candidate for the job, just one negative item on your background check can and most likely will eliminate you from being considered for the job.

If that is the case for just a class C misdemeanor, consider what implications a DWI or a felony charge will have on your record.  Every employer considers factors such as ethics and liability when hiring a new employee.  They may not be able to obtain insurance for you if you have a DWI or other charges on your record.  If an employer is ever sued and the complainant presents that an employee has a criminal record, it can result in the case being lost (even if the case is based on trumped-up allegations)  All of these factors will weigh against you during the hiring process, making your chances of obtaining a good job very slim.

So think carefully before you walk into a courtroom and face the judge alone.  Criminal defense attorneys that have been in business for a long time, such as Mark Morales & Associates, are in and out of these courtrooms daily.  They know the law, they know the process and they know how to win your case…. Do you?

You can call and get a completely free consultation before you make a decision that will effect the rest of your life.  You can also call and find out how to have a criminal charge removed (expunged) from your record if you or another attorney were unable to prove your innocence in a court of law.

 

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Do you know the new Texas traffic and criminal laws?


Below is a list of selected changes to traffic and criminal statutes that went into effect on September 1, 2011.

**Please note that this is not a comprehensive list**
for a complete list of all new laws passed by the Texas Legislature
visit Texas Legislature Online

Texas Capital Building, Austin TexasCriminal Laws

•  Certain synthetic compounds deceptively labeled as “bath salts” and synthetic marijuana products (K2 or spice) have been added to Penalty Group 2 of the Texas Controlled Substances Act. (HB 2118, SB 331). Bath salts contain dangerous stimulants, and K2 mimics the effects of marijuana. Both have been sold in convenience stores and head shops, and have side effects that can be harmful and long‐lasting.

•  The electronic transmission or possession of visual material depicting a minor engaging in sexual conduct (“sexting”) has been added as an offense in the Penal Code. The penalty can range from a Class C misdemeanor to Class A misdemeanor, depending on the circumstances. This does not apply to minors involved in a dating relationship or spouses. (SB 407)

•  The possession or use of tire deflation devices, commonly known as caltrops, for any purpose other than law enforcement use or as an antique or curio is prohibited. Criminal organizations have increasingly used caltrops as they attempt to evade apprehension, resulting in damage to patrol vehicles and innocent vehicles on the road. (SB 1416)

Traffic Laws

•  Tow trucks have now been added to the slow down or move over laws, which require drivers to slow down 20 miles per hour below the speed limit, or to vacate the lane closest to the stopped emergency vehicle that has emergency lights activated if the road has multiple lanes traveling in the same direction. (HB 378)

•  Speed limits will now be the same during night and day driving, and separate speed limits for trucks have been eliminated. The maximum speed limit on state highways may be raised to 75 miles per hour if approved after a finding by TxDOT that the increased speed would be reasonable and safe following an engineering and traffic investigation. (HB 1353)

•   A driver may not allow a child under 18 to ride in a watercraft while it is being towed on a street or highway. This does not include watercraft being towed on a beach or in a parade. (HB 2981)

Driver License

•  Hardship driver licenses will be suspended if the holder is convicted of two or more moving violations during a 12‐month period. DPS may no longer waive the driver education requirement to issue a 60‐day hardship license. (HB 90)

•  Drivers subject to the Driver Responsibility Program will be able to pay the entire three‐year amount of surcharges owed for a violation in advance, rather than paying across all three years. (HB 588).

•  Veterans will be exempt from the fee for a personal identification certificate if they can show honorable discharge and at least 60 percent service‐related disability. Disabled veterans are exempted from driver license fees under current law. (HB 1148)

•  A veteran designation will be displayed on a driver license for applicants who provide proof of military service and honorable discharge. (HB 1514)

•  The Sunset Commission has been charged with reviewing the current oversight structure of driver education and driver safety schools, which are currently overseen by the Texas Education Agency, and determine if another state agency should have oversight. Providers of driver education courses, including DPS for the purposes of parent taught driver education, will be able to provide certificates of completion directly to those who have completed driver education courses. (HB 2678)

•  DPS will establish a deferral program for surcharges assessed under the Driver Responsibility Program to military personnel actively deployed outside the U.S. for the duration of the individual’s deployment. (HB 2851)

•  Voters will be required to present a driver license, personal identification certificate, military identification, election identification certificate, United States citizenship certificate passport, or concealed handgun license to participate in an election. DPS must create an election identification certificate to be issued by DPS for registered voters who do not have any of the other acceptable forms of photo identification. The election identification certificate will be distinguishable from a driver license or personal identification certificate, and will be issued free of charge to persons only if they do not hold any other acceptable form of identification, as
listed in Election Code 63.0101. These forms of identification include a driver license, personal identification certificate, military identification, a United States citizenship certificate, passport, or concealed handgun license. (SB 14)

•  A four‐hour driving safety course was approved for drivers under 25 years old. Drivers under 25 who are cited for a moving violation may be required to take this course. (SB 1330)

•  Applicants for a driver license or identification certificate must provide proof that the applicant is lawfully present in the United States. Applicants who are not U.S. citizens, legal permanent residents, or admitted to the U.S. as refugees or asylees are considered temporary visitors. Driver license and identification certificates issued to temporary visitors expire concurrent with the end of the applicant’s lawful presence, or after one year if the legal stay is indefinite. Driver license and identification certificates issued to temporary visitors are to be in the same format and contain the same information as those issued to U.S. citizens and legal permanent residents. (SB 1, 82nd 1st Called Session, effective September 28, 2011)

Weapons

•  A person may carry a handgun, knife, or club in a watercraft under the person’s ownership or control. The handgun, knife, or club may not be in plain view, used while engaging in criminal activity, or carried by a member of a criminal street gang. (HB 25)

•  Employers may not prohibit employees with a concealed handgun license from having firearms or ammunition in their personal cars in the employer’s parking lot. This does not apply to employees of public, private or charter schools, or employees of chemical manufacturers or oil and gas refiners. (SB 321)

Crime Labs

•  Crime laboratories are required to preserve biological evidence used in the investigation or prosecution of a felony for at least 40 years, or until the applicable statute of limitations has expired if there is an un‐apprehended actor associated with the offense. (SB 1616, effective June 17, 2011)

•  Law enforcement agencies are required to submit DNA evidence in active sexual assault cases to an accredited laboratory within 30 days of receipt. Once the evidence has been analyzed, the DNA must be compared by DPS to state and federal DNA databases. The bill requires law enforcement agencies to submit unanalyzed DNA evidence collected after September 1, 1996, to DPS for analysis. (SB 1636)

Miscellaneous New Laws

•  A new category of missing person alerts may now be issued for missing persons with intellectual disabilities. Activation of this alert includes a requirement of documentation of a qualifying intellectual disability. (HB 1075)

•  DPS must create a pass for expedited access to the state Capitol building. To be eligible, an applicant must meet the criteria to apply for a concealed handgun license, with the exception of handgun proficiency requirements. (HB 2131, effective May 30, 2011)

•  The Texas Fusion Center Policy Council was created to assist DPS in monitoring fusion center activities in Texas. The council is required to establish a privacy advisory group, recommend best practices for fusion centers in Texas and annually submit a report to the Governor and the Legislature regarding the council’s progress. (HB 3324, effective June 17, 2011)

 
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Posted by on October 6, 2011 in Safety, Texas Laws

 

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How Do I Get My Criminal Record Expunged?


 
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Posted by on July 26, 2011 in Expunctions

 

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Minor in Possession – Consumption


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My son was charged with Minor in Consumption-Minor in Possession, what does this mean?  What is going to happen to him?

MINOR IN CONSUMPTION

A minor (in alcohol related offenses, a person under the age of 21, the legal drinking age) can be charged with a Minor in Consumption charge for simply consuming an alcoholic beverage.  An officer does not have to actually see him drink the alcoholic beverage but may make the determination to charge him with the offense if he smells alcohol on him or if he agrees to take a breath test and blows a number indicative of alcohol consumption.  Mere possession of alcohol is not sufficient to warrant him being charged with Minor in Consumption.  An affirmative defense does exist if he consumed the alcohol in the visible presence of his adult parent, guardian or spouse.

MINOR IN POSSESSION

Just as it is illegal for a minor to purchase alcohol, it is also a crime for a minor to be found in possession of alcohol.  Possession of alcohol for this charge can be considered in various ways.  If he is found holding a beer can/bottle, whether it is empty or full he can be charged with Minor in Possession.  He could also be found in possession at a party where this is alcohol present even if he is not physically holding any alcohol.  He may be at risk of being charged with Minor in Possession whenever he is at a party, nightclub, or in a vehicle where is alcohol is present.  However, if he was is in the visible presence of his adult parent, guardian or spouse he may not be charged with Minor in Possession.  Additionally, he may not be charged with Minor in Possession if he was in possession of the alcohol in the course and scope of his legal employment.

CONSEQUENCES

Minor in Consumption and Minor in Possession are both Class C misdemeanors, the same level as a speeding ticket.  These charges along with the other alcohol related offenses of the Purchase of Alcohol by a Minor or the Attempted Purchase of Alcohol by a Minor can result in various ranges of punishment depending on if this was the first time he was charged with an alcohol related offense.  Frequently, a court will allow a minor to be placed on deferred disposition which allows the case to be dismissed once certain requirements have been fulfilled.

If this was the first time the minor was charged with an alcohol related offense and placed on deferred disposition, the judge may order the minor’s driver’s license to be suspended for 30 days or if he does not yet have his license issue an order to deny the issuance of one for 30 days; up to a $500 fine; 8 to 12 hours of community service; and mandatory attendance of alcohol-awareness classes.

If this isn’t his first time being convicted of an alcohol related offense then the judge may order he be fined between $250 and $2,000; 20 to 40 hours of community service, and can be sentenced to up to 180 days in jail.  The judge may also suspend the license for 60 days if this is not the first alcohol related offense but 180 days if the minor has been previously convicted twice or more of an alcohol related offense. The judge may further impose the attendance of an alcohol awareness class.  Unfortunately, if a minor has been convicted twice or more for an alcohol offense, he is not eligible for deferred disposition and thus not eligible for a dismissal of his case through this method.

If the minor is under the age of 18, the court may also require the parents of the minor attend the class as well.  If he doesn’t complete the conditions set out by the judge within the allotted time, then his license may be suspended up to six months or denied issuance of a license or permit for six months if he has not yet been issued one.

Some people may not consider these types of cases as serious charges since they are only Class C misdemeanors but we think otherwise.  We understand that an alcohol related offense on your child’s record could impact their chances of getting into college or even being hired for certain jobs.  As criminal defense attorneys who have handled a wide range of cases, and several MIP and MIC charges, we will fight our hardest to achieve the best results possible for your child’s case.

Visit us on Facebook and contact us for a free consultation at any of our Texas locations, Georgetown, Austin, San Marcos and McKinney.

 

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Employee Criminal Background Checks


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With the tough economic times, large quantities of people are being forced to seek new employment.  Frequently, this entails new employers running background checks to inquire about the potential employee’s criminal history.  Federal law permits employers to conduct this search.  Fortunately, some people are eligible to have their criminal records sealed or expunged depending on the outcome of the case.  If your record is sealed that means that potential employers outside of the government realm will not be able to see that you had a criminal charge against you.  In Texas, an expunction completely erases the criminal charge and you can legally under oath say that you were never arrested for an offense.  To find out if you are eligible for an expunction or an order of non-disclosure visit our website or join us Facebook and submit a free case consultation form.

 
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Posted by on July 12, 2011 in Is It Legal?

 

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Theft in Texas


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What Constitutes Theft in Texas?

The Texas Penal Code defines theft as taking someone else’s property without consent, either by deception or by physically stealing it. You don’t have to keep the property for it to be considered theft, but only long enough to deprive the owner of its value. And, if you take something, then return it for a reward, that is also theft under Texas law.

To charge you with theft, the police need to show that you acted with criminal intent, meaning you knew the property belonged to someone else and knew you didn’t have their permission to take it, and that you
actually have or had possession of the property. They can do by that using physical evidence, such as security camera video in a shoplifting case, or by statements from a witness, an accomplice, or you.

Types of Theft Under Texas Law

The four most common ways to commit misdemeanor theft or felony theft in Texas are:

  • Shoplifting – Taking items out of a store with the deliberate intention of not paying the store for the full value of the item. This includes taking, say, a shirt and leaving with it, or switching the tag on an
    expensive shirt with the tag on a less expensive one and paying the lower price at checkout.
  • Bad checks – Paying for an item on a closed account or an account that does not enough money to cover the amount of the check. If the check is written on a closed account, that alone is evidence of theft under Texas criminal law. If the check bounces, and you do not reimburse the merchant
    within 10 days of notification, then that is evidence of theft under the law.
  • General theft – Taking an item that belongs to someone else by any means when you do not have permission. Examples of this include taking a woman’s purse from her shopping cart when her back is turned, stealing copper from a construction site, or taking $20 from the cash register at work.
  • Buying/accepting stolen property – Taking possession of an item when you know the person selling or giving it to you is not the rightful owner. If you know a friend shoplifted an item from a store, then passed the item on to you, you have committed theft by taking it, whether you paid for it or it was a gift.

Penalties for theft in Texas

Amount Classification Penalties

Less than $50, or less than $20 if by check

  • Class C misdemeanor
  • A fine of not more than $500

$50 or more but less than $500, or $20 or more but less than $500 if by check

  • Class B misdemeanor
  • Not more than 180 days in a county jail and/or
  • a fine of not more than $2,000

$500 or more but less than $1,500

  • Class A misdemeanor
  • Not more than 1 year in a county jail and/or
  • a fine of not more than $4,000

$1,500 or more but less than $20,000

  • State jail felony
  • 180 days to 2 years in a state jail and/or
  • a fine of not more than $10,000

$20,000 or more but less than $100,000

  • Third-degree felony
  • 2 to 10 years in a state prison and/or
  • a fine of not more than $10,000

$100,000 or more but less than $200,000

  • Second-degree felony
  • 2 to 20 years in a state prison and/or
  • a fine of not more than $10,000

$200,000 or more

  • First-degree felony
  • 5 to 99 years in a state prison and/or
  • a fine of not more than $10,000

Those punishments can also be enhanced under certain conditions. For example, Class B and C misdemeanor theft charges increase one level if you have a previous theft conviction, and a Class A misdemeanor
becomes a state jail felony if you have two previous theft convictions.

Also, the theft of some items such as firearms or metals such as copper or aluminum are felonies no matter the actual value.

Shoplifting charges also automatically become more serious if you are caught using tools to defeat theft prevention devices, or if you are charged with organized retail theft, meaning you were working with others
to steal items for profit.

However, in all likelihood, if you are charged with simple theft by shoplifting and are convicted or enter a plea, you probably will receive only community service and fines, as long as the value is low and it’s a first or second offense. However, you are still stuck with a permanent criminal record which may never go away.

The fact of a permanent, public criminal record is the reason why most people hire a shoplifting defense attorney to fight the charges. Avoiding a criminal record in the internet age can save you tremendous
headaches in the future. It could prevent you from getting a job, a scholarship, or worse.

Civil Penalties for Shoplifting

The criminal shoplifting record for a conviction might not be the end of it, either.  A conviction for the criminal charge of theft frequently includes restitution to the victim, but Texas also has the Texas Theft Liability Act. This civil law allows the victims of theft to sue for damages and is separate from the criminal case.

The suits are typically used in shoplifting cases. The store will send you a letter demanding that you pay the value of the stolen item, as well as costs related to recovery.  The law allows the victim to collect actual damages, plus up to $1,000 against an individual or actual damages, plus up to $5,000 against the parents or guardians if the accused shoplifter is a minor.

You should not try to face either the criminal charge of theft or a civil suit in a shoplifting case without consulting a Texas criminal defense lawyer who knows how to defend shoplifting/theft offenses. We can fight the case against you by challenging the reliability of eyewitness or accomplice testimony, and by questioning the legality of any searches by police or admissions you may have made to them.

Seriousness of Theft Charges

In Texas, theft charges can run the gamut from a class C misdemeanor to a serious felony, based on the value of what was allegedly taken, whether force was used and whether the property was entered.  It is possible to face the legal equivalent of a traffic ticket or a charge that can lead to a life prison term.

The Texas theft statute is very broad.  The theft statute covers many types of criminal conduct involving the misuse of another’s property.  All of these crimes however, have one thing in common – that is, the taking of the property without the owner’s consent.  Examples of crimes that are covered by the Texas theft statute include shoplifting, writing bad checks or hot checks, receiving stolen property, possessing stolen property and auto theft.

Even a minor theft conviction can have a devastating impact on your future.  Do not make the mistake of believing that a misdemeanor theft charge is not a serious situation. Theft cases are crimes of moral turpitude.  That is, they are crimes that reflect on one’s character.  Shoplifting and the other theft charges, because they are crimes of moral turpitude, can have lifelong and far reaching consequenses.  Any misdemeanor or felony conviction for a theft charge will result in a permanent criminal record, even if you receive probation.  Since employers routinely conduct background checks, a theft conviction will make it much harder for you to find a good job.

Theft cases can become more serious crimes with the danger of harsher sentences depending on the facts and circumstances under which the alleged theft occurred. If you are accused of entering someone’s property with the intention of committing theft, you can be charged with burglary, a felony punishable by up to 20 years in prison. Theft can also become a felony if it is alleged that force was used to take an item or money. Theft committed with a weapon is aggravated robbery, a felony that can result in a lifetime prison sentence.

At the Law Offices of Mark Morales and Associates we represent people facing all types of theft and theft related charges in Texas, including:

If you have any questions about what theft in Texas or have been charged with any kind of theft 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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License Suspension in Texas


Texas law requires that the department shall suspend a person’s driver’s license if the department determines that the person had an alcohol concentration of .08 in accordance with Section 49.01 (2)(B) of the Texas Penal Code, while operating a motor vehicle in a public place or while operating a watercraft; or (2)  the person was a minor on the date that the breath or blood specimen was obtained and had any detectable amount of alcohol in the minor’s system while operating a motor vehicle in a public place or while operating a watercraft.

Being arrested for a DWI in Texas does not necessarly result in having your driver’s license suspended.  There are options available to contest the suspension or to allow you to continue to drive legally despite the suspension.  Remember that each state has different laws regarding DWI’s and suspensions so it is important to find an attorney in your state that is knowledgable about DWI laws.

To assist you with the process of a license suspension in Texas, here is a break-down of what happens after a DWI arrest in Texas:

  • After you are arrested for a DWI, you have 15 days to request an ALR hearing.
  • A criminal defense attorney may request the hearing for you or you may request one yourself prior to hiring an attorney.  ALR hearings are used to contest driver’s license suspensions.
  • At an ALR hearing, license suspensions may be overturned completely or the suspension may be postponed until a later time pending the outcome of the hearing.

Driving is a necessity to life, so of course it’s important to ensure that you can continue driving legally. If an ALR hearing is not successful in overturning your license suspension, another option available in Texas counties, such as Williamson, Travis, and Hays, is to file a petition for an Occupational Driver’s License.  An Occupational Driver’s License is an incredibly helpful option that allows you to maintain the ability to drive as needed despite your license being suspended as a result of a DWI arrest or other offense.

Here is a list of items you will need in order to have the petition granted and continue driving after your license suspension:

  • A letter from your employer explaining your need to drive.  The letter should include a list of all counties in which you may need to drive during your license suspension along with the times of day and days of the week that you would need to drive.
  • An SR-22 insurance form from either your insurance company or another insurance company.  An SR-22 is a supplement to the insurance that you currently have.
  • Filing Fee’s.  Fees vary by county in which the offense was committed
  • A copy of your three-year driving record.  This can be obtained from Texas DPS. You can visit their website and download the application at http://www.txdps.state.tx.us/InternetForms/Forms/DR-1.pdf
  • A personal letter listing any activities in which you need to attend outside of work, i.e:
    • School classes,
    • church,
    • court settings,
    • AA meetings,
    • doctor appointments,
    • childcare,
    • carrying out essential household duties, etc.
    • This list must also include all of the counties in which you may need to drive during your license suspension along with times of day and days of the week

Once all of the requirements have been submitted, a petition is drafted and filed with the court.  Once your petition is filed in court, a hearing may be required, depending on where the petition is filed.  If the court grants you an Occupational Driver’s License you will be eligible to drive for the reasons and times approved by the judge in your petition and outlined in the order resulting from the court’s approval.

IMPORTANT POINTS TO REMEMBER:

  • While driving with an Occupational Driver’s License the order should always be in your possession. 
  • If you are pulled over and do not have the order in your possession you will be arrested. 
  • Once your suspension period is over, you simply have to pay a reinstatement fee and you will receive your regular license back. 

If you have any questions 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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