Allen Texas Criminal Law Blog

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522

Immediate Jail Release (214) 403-6522
This article is aimed to provide details on the process of immediate jail release by way of an attorney writ bond. While I like to think these articles provide people with valuable information, I understand helping a recently arrested friend or relative out of jail is a stressful situation which can be frustrating, confusing and even emotional. If you prefer to talk to an attorney immediately, please call 24 hours a day:
(214) 403-6522.

The Default Process : May Take a Couple of Days
When a person is arrested for a criminal offense, it is the intent of the jail to hold that person until the case is resolved or until a bond is posted. A bond is simply a mechanism which provides the court with assurance a recently arrested person will show up when a case is filed. Under the default process, a bond is set by a judge or magistrate. Once a bond is set, a bond can be posted and an arrested person is released.

There are two features of the default process which make an attorney writ bond necessary: (1) magistrates and judges only dedicate about 30 minutes per weekday and usually one day per weekend to setting bonds, and (2) getting before a magistrate or judge usually requires an individual to be physically transferred from a city jail to the county jail. This means, under the default process, a person may be sitting in jail for a couple of days before they have an opportunity to post a bond and go home.

So what is the alternative?

Attorney Writ Bond: Immediate
In Collin County and in Dallas County an attorney can file with the jail a writ of habeas corpus to obtain an immediate jail release. The jail refers to this process simply as an "Attorney Writ Bond." The process involves gathering information and a signature from the holding jail and delivering the bond and necessary legal documents to the county jail. Typically this process takes two hours and can be done any time of the day.

Why Not Hire a Bondsman: 10 good reasons
In Texas, the only person who can post an attorney writ bond is an attorney. Still, there are some bond companies that will work in cahoots with attorneys to process a writ bond. They do so at their own peril. Texas Occupations Code Section 1704.304 makes it a criminal offense for "A bail bond surety or an agent" to "recommend or suggest to a person for whom the bail bond surety executes a bond the employment of an attorney or law firm in connection with a criminal offense."

Even if the practice were perfectly legal, there are number of reasons why it is better to hire a reputable criminal attorney for an attorney writ bond. These reasons include some of the following:

1. Hiring an attorney secures immediate professional services, legal advice, and counseling, which a bondsman cannot provide.
2. In attempting to bridge this gap, a bondsman may offer legal advice which is wrong or misleading and frequently relied upon detrimentally.
3. An attorney has the authority to visit, in-person, with your friend or loved one and provide necessary legal advice, as well as the comfort of knowing help is on the way.
4. A bondsman cannot and will not meet with a person in jail.
5. A writ bond is only part of an array of services an attorney can provide. Frequently it marks the beginning of a much broader attorney-client relationship geared toward resolving a legal issue.
6. A bondsman writes bonds. A bondsman is not concerned with the outcome of your case.
7. An attorney owes a fiduciary and ethical obligation to his client and prospective client. Attorneys are required to put their client's interests first.
8. Bondsmen are not required to put their customer's interests first.
9. In fact, some bondsmen are quick to find a reason to request from a judge to be discharged as a person's bondsman - leaving that person without a bond and subject to arrest.
10. Attorneys are professionals. Good ones know the law and what to do if something in the process goes wrong.

What Types of Charges are Eligible for Attorney Writ Bonds?
An attorney may file a writ bond for the following types of cases:

1. Class A Misdemeanors
2. Class B Misdemeanors (DWI, Theft, Marijuana and Possession Offenses)

The following are not eligible for attorney writ bonds:

1. Class C Misdemeanors
2. Traffic Tickets
3. Felony Cases
4. Family Violence Cases

What Cities Allow Jail Release by Attorney Writ Bond?
Collin County:
Allen, Frisco, Plano, McKinney, Richardson, Sachse, Wylie,

Dallas County:
Addison, Balch Springs, Coppell, Desoto, Farmers Branch, Garland, Highland Park, Irving, Mesquite, Richardson, Sachse, University Park, Wylie

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

It would be generous to say Texas law on driver's license suspensions is difficult to piece together. This article is inspired by the countless times sitting in a docket room full of attorneys or digging through pages of the transportation code with a judge unable to come up with a simple answer to a driver's license question. The following details the source of almost every type of license suspension in Texas and the corresponding suspension period.

SUSPENSION OF LICENSE FOR DWI CONVICTION - TRANSP. CODE 521.344
I start with DWI suspensions here, out of order, because they are perhaps the most common license suspensions and by far the most confusing. In Texas, a person's license can be suspended under two scenarios in a DWI case: (1) as a result of what happens with the breath test, and (2) as the result of a conviction. Typically people do not suffer license suspensions as the result of a conviction because such suspensions apply only in the case of sentences which are not probated (in cases not involving probation). Nonetheless, there are times when people cannot avoid jail or even elect jail over probation in their DWI case. When that happens, the following license suspensions apply.

• First Offense: 90 days - 1 year
• Second Offense: 180 days - 2 years
• Two Offenses Within 5 Years: 1 year - 2 years
• Two Offenses Within 5 Years Requires Deep Lung Device the court must order a deep lung device installed on the vehicle for a period equal to one additional year longer than the applicable suspension.
• Credit for ALR Suspension: the court is required to give credit toward a suspension under this section for any time served as the result of a suspension for refusing to give a specimen of breath or blood (discussed below). Credit does not apply to a person who has been previously convicted of DWI.

ALR SUSPENSION OF LICENSE FOR REFUSAL OR FAILRUE OF BREATH TEST
As noted above, this is the other scenario under which a license may be suspended in a DWI case. Following a DWI arrest, an officer will ask an individual to submit a specimen of breath or blood. The arrested person's decision usually triggers one of the following suspensions.

• Refusal: 180 days for a first offense and 2 years if a previous DPS drug/alcohol action has been taken in the past 10 years. Tex. Transp. Code 724.035
• Failure: 90 days for a first offense and 1 year if a previous DPS drug/alcohol action has been taken in the past 10 years. Tex. Transp. Code 724.022

DWI SUSPENSIONS AND OCCUPATIONAL LICENSES - TRANSP. CODE 521.251
A person may apply for an occupational driver's license under almost every provision authorizing a suspension of a license. However, a person whose license is suspended as the result of a DWI may be facing a harsh waiting period (also known as a hard suspension). The following are the occupational license waiting periods in DWI cases.

• 1 prior DWI enforcement within 5 years 90 day waiting period.
• 1 prior DWI conviction within 5 years 180 days.
• 2 prior DWI convictions within 5 years 1 year.

Note: it is not clear from the language of the statute whether these waiting periods apply strictly to occupational license relief from ALR suspensions or both ALR suspensions and conviction suspensions.

AUTOMATIC LICENSE SUSPENSIONS - TRANSP. CODE 521.341
This section of the Transportation Code enumerates several offenses which will trigger a license suspension automatically. Strangely, there are about a dozen other separately codified automatic suspensions in Chapter 521 of the Transportation Code. Nonetheless, a driver's license will be automatically suspended upon final conviction for the following offenses.

1. Criminally Negligent Homicide involving the use of a motor vehicle.
2. Evading Arrest or Detention in a vehicle.
3. DWI Convictions (discussed in detail above)
4. Intoxication Assault involving a motor vehicle.
5. Any offense classified as a felony under the Transportation Code.
6. Leaving the Scene of an Accident.
7. Possession of a Fictitious/False I.D.
8. Manslaughter involving the use of a motor vehicle.

Period of Suspension: 1 year generally, 18 months for subsequent suspensions, 90 days - 1 year for False/Fictitious I.D.

SUSPENSION FOR GRAFITTI - TRANSP. CODE 521.320
A court may order the DPS to suspend a person's driver's license upon conviction of a graffiti offense under Section 28.08 Penal Code.
Period of Suspension: 1 year.

ALCOHOL/DRUG OFFENSES OF PERSONS UNDER 21 - TRANSP. CODE 521.342

• Manufacture Delivery Possession Transportation or Use of an Alcoholic Beverage by a Minor.
• Possession of Drug Paraphernalia and other offenses relating to the possession of drugs.
• Possession, Manufacture, Delivery, Transportation of a Dangerous Drug.
• Possession, Manufacture, Delivery, Transportation of an Abusable Volatile Chemical.
• Driving While Intoxicated Conviction (regardless of whether probated).

Period of Suspension: 1 year.

JUVENILE COURTS AND MINORS WITH ALCOHOL - TRANP. CODE 521.345
A Court must order DPS to suspend the license of a juvenile who is adjudicated guilty of a crime by a district court. Similarly, the following alcohol offenses of minors can potentially involve a driver's license suspension: Public intoxication, Purchase of Alcohol by Minor, Attempted Purchase of Alcohol by Minor, Minor in Consumption, Minor Driving Under the Influence Minor in Possession, and Misrepresentation of Age by Minor. Minors who are placed on deferred disposition are required to show proof of completion to the court within 90 days of their "conviction." Failure to do so results in a license suspension.
Period of Suspension:

• Juvenile Court not to exceed 1 year.
• Alcohol Offenses of Minors not to exceed 6 months for a single offense not more than a year for multiple offenses.

JUVENILE CONTEMPT IN MUNICIPAL/J.P. COURT - TRANSP. CODE 521.3451
When a juvenile fails to pay a Class C fine, in lieu of going to jail, a municipal or justice court must take other action. One way in which these courts may enforce a fine is by ordering a juvenile's license suspended.
Period of Suspension: until the fine is paid.

SUSPENSION FOR POSSESSION OF A FAKE I.D. - TRANSP. CODE 521.346
A person convicted for possessing or using a fake identification is subject to a license suspension.
Period of Suspension: 90 days - 1 year.

USE OF FAKE INSPECTION OR REGISTRATION - TRANSP. CODE 521.3465
A license is automatically suspended upon final conviction of "Display of Fictitious Vehicle Registration" or "Displaying False Safety Inspection."
Period of Suspension: 180 days.

REVOCATION FOR TAMPERING WITH GOV. RECORDS - TRANSP. CODE 521.3466
A license is automatically revoked upon a final conviction for "Tampering With Government Records," if the record was a motor vehicle license plate, registration or safety inspection certificate. It is important to note that this is a revocation and not a suspension. A person with a revoked license is not eligible to petition the Court for an occupational license and must reapply for a license once the revocation is lifted.
Period of Revocation: 2 years.

REVOCATION FOR CERTAIN SEX OFFENDERS - TRANSP. CODE 521.348
Registered sex offenders who fail to follow yearly renewal requirements.
Period of Revocation: until in compliance.

SUSPENSION FOR STEALING GAS - TRANSP. CODE 521.349
A person's license is automatically suspended upon final conviction for a "Theft" offense which involves an affirmative finding that the theft involved theft of motor vehicle fuel.
Period of Suspension: 180 days for a first offense, 1 year for subsequent offenses.

SUSPENSION FOR RACING ON A HIGHWAY OR STREET - TRANSP. CODE 521.350
A person's license is automatically suspended upon final conviction of "Racing on a Highway." A person who's license is suspended under this subsection is required to perform at least 10 hours of community service before the suspension is lifted. An individual under 18 convicted of Racing on a Highway is not eligible to petition the court for an occupational driver's license.
Period of Suspension: 1 year.
Potential Revocation: a person's license is revoked for a year if they drive without an occupational license during the period of suspension.

PURCHASING/FURNISHING ALCOHOL TO A MINOR - TRANSP. CODE 521.351
A person's license is automatically suspended upon final conviction for "Purchasing or Furnishing Alcohol to a Minor."
Period of Suspension: 180 days for a first offense, 1 year for subsequent offenses.

LICENSE SUSPENSION FOR CERTAIN DRUG OFFENSES - TRANSP. CODE 521.372
A person's license will automatically be suspended for any drug offense, any offense falling under the Controlled Substances Act and any Felony under 481, Health and Safety Code that is not a drug offense. This includes not only possession of drugs but possession of drug compounds, possession of paraphernalia and even falsification of drug tests.
Period of Suspension: 180 days.
Indefinite Suspension: A person convicted of a drug offense will not be eligible for license reinstatement until completion of a Drug Offender Education Course (regardless of the applicable suspension period).

DPS DETERMINATION OF LICENSE SUSPENSION - TRASNP. CODE 521.292
Outside of the arena of automatic suspensions which arise from convictions of enumerated offenses, the Department of Public Safety may declare certain conduct worthy of a license suspension. Under the following scenarios, our legislature has delegated authority to DPS to unilaterally declare license suspensions.

• Operating a motor vehicle during a period of suspension
• Habitually reckless or negligent operation of a motor vehicle
• Habitual violator of traffic law, meaning: 4 or more moving violation convictions in 12 consecutive months or 7 or more moving violation convictions in 24 months.
• Permitting unlawful or fraudulent use of a license
• Committing an offense in another state that would be grounds for suspension
• Two or more convictions of a violation involving a restriction on the license
• Being the responsible party for an accident involving serious injury or property damage
• Under 18 years with a provisional license with 2 or more traffic convictions in 12 months
• Fleeing from police in a motor vehicle

Period of Suspension: generally, 90 days. Driving during a period of suspension carries a suspension equal to the lesser of 1 year or the term of original suspension.
Right to a Hearing: a person who receives a license suspension based on one of the 9 factors listed above is entitled to a hearing on the license suspension. The hearing takes place at a justice or municipal court and DPS has the burden of proving that a license suspension is proper. In many cases, the judge can probate the license suspension which has the effect of negating the suspension altogether.

FAILURE TO APPEAR IN MUNICIPAL COURT - 37 TEX. ADMIN. CODE 15.114
If a person fails to appear in court or pay a fine ordered by a municipal court, DPS may deny license issuance until compliance with the municipal court.

FAILURE TO PAY SURCHARGES - TEX. TRANSP. CODE 708
Convictions of certain offense may trigger a requirement to pay DPS yearly surcharges. Failure to pay or remain current on an installment plan will result in a license suspension. Note: failure to pay surcharges is no longer a basis for denying an occupation driver's license.
Period of Suspension: indefinite - until payment or installment is current.

SUSPENSION FOR INSURANCE CONVICTIONS - TRANSP. CODE 601
DPS will suspend the license of a person convicted of Failing to Maintain Financial Responsibility (No Insurance) who has at least one previous conviction for the same offense. This suspension may be lifted by filing an SR-22 insurance policy for 2 years with DPS.
Period of Suspension: until insurance is filed with DPS.

OTHER SUSPENSIONS
There are various other suspensions scattered throughout Texas Law. This is a comprehensive but by no means an exhaustive list of Texas license suspensions. Other

• suspensions under the law include:
• Suspensions for failure to pay child support.
• Suspensions for minors failing to attend school.
• Suspensions for failure to report a motor vehicle accident.
• License revocations for inability to drive safely.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

There are really only two motivations behind a prosecutor's plea offer: (1) the individual prosecutor's belief of what punishment is fitting for a particular individual, and (2) the individual prosecutor's belief of what he/she can prove in court. As most lawyers recognize, no amount of disapproval for the opposing party can overcome a bad case.

In the context of Family Violence, there is unquestionably a fair amount of disdain flowing from the prosecutor to the defendant. Occasionally, this disdain takes a back seat to uncooperative or unbelievable witness or "victim." Occasionally, a prosecutor must cut a deal for risk of losing the whole case.

Naturally, there are motivations which drive the decision-making of an individual accused of family violence, too. Aside from avoiding a jail sentence, there is rarely a motivation more important than avoiding a permanent criminal record. Deferred Adjudication is usually a pretty good vehicle for fixing a criminal record while still accepting some form of punishment and thus a good way to solve the prosecutor's dilemma described above. Successful completion of deferred adjudication will usually lead to a nondisclosure (sealed record). Unfortunately, the law in Texas prevents the sealing of any record which involves family violence.

There is a simple fix for this problem that is well known by both prosecutors and criminal defense lawyers. The State may abandon the family violence allegation in their charging document and transform an Assault Family Violence case into a plain Assault case. After a short waiting period an individual who resolved his/her case in this fashion should be eligible to petition the Court for a nondisclosure. At least that would be the intent of the parties when they enter into this sort of agreement.

The Disingenuous Practice of Objecting to a Nondisclosure Years Later

Unfortunately, the State sometimes keeps their fingers crossed behind their back. After successfully completing deferred adjudication, observing the applicable waiting period, and demonstrating to the world deservingness, an individual can still find his/her request opposed by the State years after the initial agreement. How is this so?

Despite the apparent punishment-for-nondisclosure tradeoff which was accepted by the State when the case was resolved, the State occasionally argues that a person in the circumstances described above is legally prohibited from obtaining a nondisclosure down the road. Their argument is that, despite the abandonment of the family violence allegation, the case still involved family violence.

What Does the Law Say About a Nondisclosure in This Situation?

Unfortunately, case law is almost non-existent on this topic. A nondisclosure is a civil proceeding and many courts have declared the "amount in controversy" does not reach a level which would create appellate jurisdiction over such issues. Nonetheless, there are some fundamental concepts which the State must wrestle with if they choose to take this backwards approach.

First, the rules of evidence apply. Particularly, the rule against hearsay applies. A prosecutor objecting to a nondisclosure cannot merely offer up the police report to the judge deciding the matter, nor can he or she invite the investigating police officer to talk about his investigation. Arguably, the State should have to sponsor the alleged victim in the criminal case as a witness. This, of course, brings us full circle to the issue of witness uncooperativeness and/or unbelievability which likely got everyone to this point in the first place.

Second, family violence as defined in the criminal context is not the same as family violence in the civil context. Under the Penal Code, Assault Family Violence may be committed "intentionally, knowingly, or recklessly," whereas Family Violence in the civil context does not include reckless conduct. This means the State will have to prove the person requesting the nondisclosure did something more than acted recklessly.

Finally, the State will have to address the logical question of why they agreed to abandon the family violence allegation in the first place. While this is not a specific legal requirement, judges are logical creatures like the rest of us and frown upon this kind of legal rope-a-dope. Primed with the knowledge that an appellate court is unlikely to accept jurisdiction and reverse their decision, many judges will do right by a person who has shown him or herself worthy.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

In some circles, the stigma associated with a marijuana conviction is fading. Though we are far from the day where the consumption of marijuana is socially or professionally acceptable in Texas, our law-makers have recognized shifting public opinion and the slowly diminishing disincentive to refrain from possessing or using marijuana. In response, our legislators have engineered possession of marijuana consequences that carry a little more oomph than the typical misdemeanor. Unfortunately some lawyers fail to discuss these very important consequences because they occur outside of the normal plea negotiation process and usually several months down the road, i.e. they are "hidden." Before accepting any plea offer which involves a conviction, a person charged with Possession of Marijuana should consider the following:

Hidden Consequence of Marijuana Conviction #1: Driver's License Suspension

Section 521.372 of the Texas Transportation Code provides for an automatic license suspension or license denial upon one single conviction of a drug offense. The length of this driver's license suspension will depend. At a minimum, a person's license is suspended for 180 days. However, the law permits the Department of Public Safety to indefinitely suspend a person's license until the suspended individual completes a drug offender educational program. For individuals who have not obtained a Texas driver's license. An automatic suspension period of 180 days will begin from the first date you seek to obtain a license.

Hidden Consequence of Marijuana Conviction #2: Student Financial Aid

In the 1990s Congress placed prohibitions or restrictions on student financial aid for students or potential students with drug convictions. This heavy handed consequence prevented many would-be students from attending or graduating from college. Under this law, with just one single possession of marijuana conviction a student would be ineligible for Perkins Loans, Pell Grants, Supplemental Educational Opportunity Grants, Plus Loans, and Work-Study Programs for a period of one year. In 2006, Congress scaled this law back somewhat by limiting prohibitions and ineligibility to students who are both: (1) actually enrolled, and (2) receiving federal aid.

Students who may be wondering whether they are affected by a marijuana conviction can go to the FAFSA website and complete the worksheet on drug convictions. The FAFSA worksheet simplifies the legislation into 10 simple questions and is well worth taking a look if you are a person facing a potential conviction for possession of marijuana.

What an Attorney Can Do?

The best way to avoid the hidden consequences of a marijuana conviction is to avoid the conviction altogether. While some lawyers (including myself) like to think they work with a magic wand, the task is sometimes easier said than done. When the writing is on the wall and a conviction is inevitable or highly probable there are specific actions which can be taken to ease the burden of these sorts of consequences. For instance, a person whose license is suspended because of a marijuana conviction may petition the Court for an occupational driver's license. Any attorney handling a possession of marijuana case should be able to incorporate this contingency with his/her representation.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

The signs are out. The state-wide warrant roundup begins Saturday February 16. According to an entry on the Collin County website, the purpose of the warrant roundup is to collect on hot checks and unpaid misdemeanor fines. Being arrested on hot checks or unpaid fines is a situation which can often be avoided with a little vigilance. Waiting to be picked up on a warrant unexpectedly is a decision which only breeds bigger problems. Here are a few things to be aware of if this article pertains to you.

Where can I check my status? If you know you owe money on a misdemeanor case filed in the justice of the peace court you may check your balance here. If you are curious whether a warrant has been issued for your arrest, you may check here.

An officer is at my house - what is his authority? An officer has the right to go into any home which he has a reasonable belief is the home of the subject of an arrest warrant, so long as he also has a reasonable belief the subject is currently inside the home. If you are the subject of an arrest warrant, you must surrender yourself immediately. If, however, you are not the subject of the officer's warrant, and he is asking permission to come into your home - you are not required to consent to his entry.

What happens if an officer pulls me over? If an officer learns of an arrest warrant during the course of a traffic stop, he may arrest you on the spot. Some officers may use the existence of an arrest warrant as a launching pad for searching your vehicle. Even if you are the subject of an arrest warrant, you do not have to consent to the search of a vehicle. The officer may find other means by which to search, but he is not entitled to your consent, nor will your consent fix the imminent warrant situation.

Can I give the officer a fake name? NO!!! This is the number one way to make a bad situation worse. In Texas, it is a Class A misdemeanor to fail to identify yourself to an officer as a fugitive from justice. Any person with an active warrant is considered under the law to be a fugitive from justice. There is almost a 100% chance the officer will discover your actual name.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

Many people have a generic understanding of what deferred adjudication is. Perhaps because many of us have received something similar to deferred adjudication on a speeding ticket or some other petty offense, we know we can plead guilty to an offense without being convicted. When charged with a more serious offense, a generic understanding is not enough. Here are the 10 important facts about deferred adjudication.

1. Deferred adjudication is a form of probation where there is no finding of guilt and no criminal conviction.
2. After successful completion of a deferred adjudication probation period, the case will be automatically dismissed.
3. A case dismissed in this fashion will still reflect an arrest and guilty plea on a criminal history background check.
4. After a case is dismissed by deferred adjudication, a person can request that the record be sealed with a nondisclosure order.
5. A nondisclosure order does not happen automatically - you must petition the court.
6. A nondisclosure is less potent than an expunction. A nondisclosure prevents the general public and employers from seeing the record; but generally, not the government.
7. Our legislature has created several nondisclosure booby traps by making a laundry list of offenses that are eligible for deferred adjudication but that are ineligible for a nondisclosure.
8. The most common offense on this list is any case in which the State has alleged family violence.
9. An allegation of family violence can be abandoned by the State when offering deferred adjudication.
10. There is no right to deferred adjudication, deferred adjudication is always the result of the proper combination of negotiation, advocacy and an understanding of the law.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

On January 9, 2013 the U.S. Supreme Court heard oral arguments in the case of Missouri v. McNeely. The Court granted this appeal to consider whether law enforcement may obtain a nonconsensual and warrantless blood draw from a suspected drunk driver under the "exigent circumstances" exception to the constitutional requirement of a warrant. The arguments advanced by the government were met with healthy dose of criticism from all sides of the bench.

Should the Court render an opinion consistent with their attitudes during oral argument, it would certainly impact the way officers do business. In Texas, there are 3 scenarios in which an officer may forcibly take a blood sample without a warrant: (1) A DWI in which there is an accident involving death or serious bodily injury, (2) A DWI in which there is a child passenger in the vehicle, and (3) A DWI in which the suspect has previously been convicted twice of DWI or any felony DWI.

A blood draw implicates hundreds of years of Fourth Amendment search and seizure jurisprudence. Under the law, the government forcibly drawing a person's blood is fairly analogous to the government forcibly entering a person's home. In either of these scenarios, the Fourth Amendment guarantees protection from unreasonable searches by requiring law enforcement to obtain a search warrant, unless one of several constitutional exceptions apply. In the case of a warrantless forcible blood draw, which is considered a search, Texas and many other States have escaped neutral and detached scrutiny by a judge under the doctrine of "exigent circumstances." The exigent circumstances doctrine forgives a warrantless search in cases where evidence will disappear in the 5 - 20 minutes it takes obtain a warrant via phone or fax.

The Justices seemed quite reluctant to accept this sort of an exception in the context of DWI blood draws. Justice Scalia noted his fear of granting officers unfettered authority when he explained "once police don't need a warrant . . . the game's over." In a similar fashion, Justice Sotomayor commented that the court shouldn't "reward police in the least efficient jurisdiction, warrant-wise, by writing a national decision that ended any warrant requirement."

The written opinion, which is soon to follow, will bind all jurisdictions to a constitutional procedure which appears will be something short of wholesale disregard for the warrant requirement. It will (hopefully) be an interesting opinion to read.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

1. It is a bad idea to drink without a plan for sober transportation. There is a reason people go to jail for DWI - it is dangerous and it is preventable.

2. Responsible social drinking is not illegal but, unfortunately, can still land you in jail. Many officers are less forgiving than the law when it comes to being "legally intoxicated."(0.08 or greater BAC or loss of normal use of mental/physical faculties). An incorrect assessment of intoxication won't be sorted out until prosecutors judges and lawyers get involved.

3. You can be arrested and prosecuted even if you are under the legal limit. In fact, when an officer decides on the side of the road that a person is intoxicated, they very rarely release that person even if a breath specimen registers under the legal limit.

4. Your driver's license can be suspended as a result of a DWI. This is usually not the most severe consequence associated with a DWI but usually the most pressing, as it usually takes place immediately upon arrest and triggers a timeline for contesting the suspension with a judge.

5. An officer will initially assess intoxication through administration of the Standardized Field Sobriety Tests - Field Sobriety Tests are voluntary. The tests are designed to assess a person's "divided attention" skills (ability to perform a physical task while listening to and following instructions). The tests are unforgiving and give little consideration to factors unrelated to alcohol which may affect performance. The field sobriety tests are voluntary and may be refused but officers are trained to use language which does not allude to this fact.

6. An officer may request a specimen of breath or blood upon arrest or may request for a roadside sample prior to arrest. Except in limited types of Felony DWI cases, these tests are voluntary and should be refused. However cordial your encounter with the police may be, the officer has one objective: gather evidence for a conviction. Despite defensive issues which frequently arise in the testing of blood alcohol content, Many jurors are predisposed to accept a breath/blood test as accurate. This presents an unnecessary battle in trial. If the officer wants your BAC bad enough, he can always apply for a warrant.

7. Everything is being recorded. From the time the officer first decides to pursue your vehicle to the time you get to the booked in to the jail, the officer will be recording everything from a dash mounted camera. Be polite and don't argue, beg, plead or apologize. I have never heard of a person who talked their way out of a DWI arrest.

8. Everything you say can and will be used against you. Prior to making an arrest, an officer can and will question you without reading you Miranda warnings. The questions are designed to gather evidence relevant to intoxication (i.e. where were you drinking, how much, would you drive a school bus of children, on a scale of 1-10 how drunk are you). There is no right answer to a lot of these types of questions - all answers lead to drunk. You should exercise your right to remain silent by politely telling the officer you do not wish to answer questions.

9. After making an arrest, officers can and will search your person and your vehicle. Be mindful of what you are carrying on your person or in your vehicle. An unrelated bottle of Jim Beam on the floor board won't be so unrelated to the police or a prosecutor. Similarly, if you tell an officer that you only had 2 drinks, there might be problems if there is a receipt for 5 martinis in your pocket.

10. Program these phone numbers into your phone:

AAA Tipsy Tow: 1-800-AAA-HELP [222-4357] AAA provides a complimentary ride and tow for people who have been drinking on New Years Eve (up to 10 miles from the destination).

24-Hour Attorney and Jail Release Number: (214) 403-6522 if you are in a situation and need advice or if you have been arrested and held without a bond set, I can help.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

If you have ever seen a decked-out police sports car - it was probably the spoils of a criminal investigation. Chapter 59 of the Texas Code of Criminal Procedure permits the local district attorney to "seize" assets which are deemed "contraband" and request that they be "forfeited" to the State so that it may be sold for profit or even transferred for the use of the local police force.

Chapter 59 says that "property that is contraband is subject to seizure and forfeiture . . ." This makes a whole lot of sense if contraband means property that is the proceeds of a criminal enterprise. But, the reality is that there is not much limitation on what qualifies as "contraband."

Some examples of what the law considers contraband include any property used in the commission of: a first or second degree felony, a felony DWI offense, and any felony drug offense.

To be treated as contraband, the law does not require a conviction of one of these offenses. Forfeiture proceedings do not grant the defendant a presumption of innocence and the State's legal burden is merely a preponderance of the evidence. This means that if the State can convince a judge or jury that a crime was probably committed and probably involved the listed property, the property will be forfeited.

There are a variety of defenses and defense strategies which can be employed to recover seized property. If nothing more, attempted forfeiture lends itself as an opportunity to learn a lot about the State's concurrent criminal case. When a forfeiture action is met with unexpected resistance, the State must weigh their own cost and benefit of proceeding. If the former outweighs the latter, a quick and favorable resolution may be in store.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

Collin County is well-known for implementing "no refusal weekends" during the holidays. A no refusal policy refers to what happens when a person arrested for DWI refuses to submit to the taking of a breath or blood specimen. During a no refusal period, judges across the county make themselves available 24/7 to sign warrants for forcibly taking a person's blood without consent. Police will request a warrant for every person who refuses to submit to a test.

If you think this is an extreme measure to solve a misdemeanor offense, you're probably not the only one. As with any operation which gets busier around the holidays, officers tend to get hasty with some of their tasks. An attorney will have the opportunity to review the warrant and the evaluation of the blood specimen to determine whether proper procedures were followed. If done too hastily, the State could be prohibited from using the result.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

"You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney one will be appointed for you."

Any police officer in the United States must inform a person of these rights before statements of an accused person held in custody may be used. Our Miranda rights are considered a prophylactic against intimidating and sometimes overzealous police interrogation of suspects who feel they are not free to get up and walk away. Texas takes these protections one step further.

Article 38.22 of the Code of Criminal Procedure provides that any statement of the accused made while in custody must be written or electronically recorded. The specific warnings required by 38.22 include the following:

1. He has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
2. Any statement he makes may be used as evidence against him in court;
3. He has the right to have a lawyer present to advise him prior to and during any questioning;
4. If he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
5. He has the right to terminate the interview at any time; and

These warnings and the waiver of these rights must be included by whatever means the statements were recorded.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

An abundance of caution is the approach the law takes with allegations of family violence. This is especially true immediately following whatever altercation took place that landed a person in jail. Chapter 17 of the Code of Criminal Procedure describes the legal process through which a person can be released from jail on bail, with a general theme of: "the quicker the better." This isn't the case with a family violence charge.

Where most people charged with a misdemeanor offense are eligible for immediate jail release, the law envisions a person charged with family violence actually appearing before a judge. Not only does this create a "cooling down" period, it gives the judge the opportunity to issue an Emergency Protective Order ("EPO"). An EPO is designed to protect the alleged victim from the alleged assailant once he or she is released on bail. A person subject to an EPO will be prohibited from harassing or threatening the alleged victim and going near his or her home, place of employment or business. An EPO may also prevent a person from going near the home, child-care facility or school of his or her children.

The usual effect of an EPO is to kick a person out of the family home. Sometimes this can be an overabundance of caution - especially when family members agree that things were blown out of proportion and both prefer not to be subject to such restrictions. In these situations Section 17.292 of the Code of Criminal Procedure permits a judge to modify the terms of the EPO.

An EPO may be modified if the judge finds: (1) the order as originally issued is unworkable; (2) the modification will not place the victim of the offense at greater risk than did the original order; and (3) the modification will not in any way endanger a person protected under the order. For all intents and purposes, opening the door to modification requires the blessing of the victim. Once the door is open, modification is considered on a case by case basis.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

Why doesn't the crime rate go down when we put more officers on the street? The simple answer is that there are an incredible number of laws which make the things people do illegal. If one out of every three people were a police officer, the police department would probably still have to prioritize which offenses they investigate. Naturally, increasing resources increases the range of offenses which garner the attention of local law enforcement. What does any of this have to do with the offense of Street Racing?

Of course, a police officer is going to stop and probably arrest any person he happens to catch street racing. But, in some more well-to-do cities, officers affirmatively go out looking for street-racers. Their efforts range from patrolling popular racing locations to even pulling license plates from YouTube videos. In case you weren't fortunate enough to catch the "drift" of this article before getting busted, there are a few things that are important to know about a Street Racing charge.

• Street Racing/Racing on a Highway is a Class B Misdemeanor punishable by up to 180 days in jail and up to $2,000 fine.
• Street Racing/Racing on a Highway can be enhanced one degree for every prior conviction. In some cases Street Racing can become a Felony offense.
• Street Racing/Racing on a Highway can result in suspension of your driver's license.
• Street Racing/Racing on a Highway can result in increased insurance premiums.
• There are several ways an attorney can help avoid many, if not all, of these consequences.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

A failed urinalysis ("UA") is one of the most common violations which result in a revocation of probation--but is it automatic? The notion that is impressed upon a person sitting in a probation office is that the matter is in the sole discretion of the probation officer. When a person believes his or her fate is in the hands of the probation officer, confessions and agreed sanctions are sure to flow.

Sanctions proposed by probation officers can range from completely reasonable to entirely absurd. When you have your back against the wall with an alleged probation violation, an understanding of the legal ramifications of refusing to accept a sanction is important. Not every scenario is as black-and-white as portrayed by a probation officer, and revocation is not in their sole discretion.

The standard of proof which earns the condemnation of a probation officer is a low one. In the administration of probation, accuracy can takes a backseat to efficiency. This is especially true with in-office drug tests which utilize an immunoassay method to determine the presence of illegal substances (the most common form of in-office drug testing). An immunoassay is a screening test which searches for the presence of chemical compounds which are characteristic in certain drugs and narcotics. However, many lawful substances have characteristics which are similar enough to drugs or narcotics to cause a false positive. For that reason, an immunoassay only indicates a possibility or likelihood that a tested sample contains an illegal drug or narcotic.

An immunoassay is usually acceptable for the probation officer to request an agreed sanction or recommend to the court that probation be revoked. However, many courts are reluctant to accept an immunoassay test as proof of illegal drug use. The more widely accepted method of drug testing requires a follow up "confirmatory test." A confirmatory test uses sophisticated equipment in a laboratory to determine what the precise substance was that the immunoassay test screened as positive.

Whatever method of proof the State chooses to go forward with at a revocation hearing, the evidence must be sponsored by a person with a scientific understanding of the process and principles used by the particular test. This can present an equally difficult task, as most probation officers do not have an adequate background to fully satisfy what the law requires in this regard.

Suffice it to say, a failed drug test may not be as cut-and-dry as a probation officer's portrayal. If you expect to find yourself in a situation where you will be pressured into accepting overwhelming sanctions, you should contact an attorney before making your decision.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

When a criminal case goes to court, the lawyer representing a person accused of a crime has two primary responsibilities: argue the facts, and argue the law. When he argues the law and wins, people sometimes consider it "winning on a technicality." This is a false impression which criminal lawyers ignore too often.

Every law involves a balancing of interests. In criminal law, those two primary interests are investigation and prosecution of crime, and protection of individual and constitutional rights. When a criminal lawyer is arguing the law, he is in essence arguing that law enforcement did something to disturb the balance that our laws and constitution have set.

But if the person is probably a criminal, who cares? This is a very common question and a good answer involves looking at legal issues through a wider lens. Laws are made to conform behavior. There is a laundry list of crimes that everyone would commit if there were no consequences (take speeding for example). Laws which protect all people from unreasonable government intrusion and unfair investigative tactics are no exception to this concept. These laws are not made with a sympathetic concern for the obviously guilty - they are made to protect all citizens by enforcing the boundaries of government action.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.