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Drunk Driving Accidents: Civil and Criminal Consequences

If being pulled over for intoxicated driving is an emotional rollercoaster, being involved in a car accident while intoxicated is an emotional train wreck. You’ll not only have to grapple with the fear of possible criminal charges, but you’ll also likely be held accountable in the civil courts for your actions when crash victims are injured or killed.

You’re probably already aware that in these situations, you’ll likely be arrested and charged with a DWI. Penalties for a DWI are bad enough. First-time offenders may face up to $2,000 in fines, license suspension, or up to 180 days in jail. However, if you’ve been involved in a drunk driving accident, you may be in for more punishment than a DWI charge.

Penalties for a criminal charge provide retribution for wrongdoing, but they often don’t provide restitution for injured victims. For example, if a person is sentenced to jail, the judge in the criminal case cannot impose a restitution order. As a result, you may have to face a civil lawsuit on top of your criminal case. When a civil lawsuit is involved, you should be very worried about having to pay punitive damages out of your own pocket.

What Are Punitive Damages?

Because drunk driving clearly meets the standard for “gross negligence,” there are ultimately three types of potential damages in a civil drunk driving case: (1) economic damages, (2) non-economic damages, and (3) punitive damages.

Economic and non-economic damages are meant to provide the car accident victim with restitution for physical and non-physical losses. Economic damages include compensation for medical bills, lost earning capacity, and property damage. Non-economic damages are meant to compensate for the loss of things that aren’t easily quantifiable, such as pain and suffering, mental anguish, disfigurement, physical impairment, and loss of consortium.

Punitive damages, on the other hand, are not designed to merely compensate for a loss. Rather, punitive damages exist purely to punish a wrongdoer and deter others from engaging in similar conduct. Having to pay punitive damages on top of any fines resulting from a DWI charge can be financially taxing for any individual.

Does Car Insurance Cover Punitive Damages?

If you’ve made the mistake of blissfully assuming your insurance will cover punitive damages, you’ve likely assumed incorrectly. The State of Texas has a long-standing tradition of protecting the freedom to contract by enforcing the terms of contractual agreements (especially insurance policies) as long as the agreement doesn’t violate public policy.

Northwestern National Cas. Co. v. McNulty

For over 50 years, Texas courts have relied on the decision in Northwestern National Cas. Co. v. McNulty as a basis for holding that punitive damages should be excluded from insurance coverage as a matter of public policy. A drunk driver had seriously injured another motorist and was looking to secure coverage from his insurance company for punitive damages.

The court reasoned that “were a person is able to insure himself against punishment he gains a freedom of misconduct inconsistent with the establishment of sanctions against such misconduct.” In other words, being able to insure against punishment defeats the purpose of punishment itself.

Fairfield Insurance Co. v. Stephens Martin Paving, LP

In 2008, the Texas Supreme Court addressed whether punitive damages were insurable for the first time. The case involved a spouse who claimed that a paving company’s negligence caused her husband’s death when a paving machine rolled over him.

In this case, the Supreme Court held that Texas public policy does not prohibit insurance coverage for punitive damages in workers’ compensation cases. However, in the court’s explanation of the decision, it was reiterated that in situations involving drunk drivers or egregious actions, coverage for punitive damages would be deemed inappropriate. Thus, punitive damages can seriously cripple an individual’s financial health, especially given how much could potentially be awarded to the plaintiff.

How Much Can Be Awarded for Punitive Damages in Texas?

Punitive damages will vary depending on the circumstances surrounding the accident and the severity of the crash itself. The State of Texas does cap punitive damages at the greater of $200,000 or double the amount of economic damages plus non-economic damages (up to $750,000).

When it comes to drunk driving, there is an exception to the punitive damages cap that you need to be aware of. If you are found guilty of intoxication assault or manslaughter, there are no caps on punitive damages, even when the felony was not committed knowingly or intentionally.

Therefore, it’s very likely the cap may not apply in your case.

Can an Injured Victim File a Civil Lawsuit if I’ve Already Been Convicted?

If you’ve been convicted of a DWI and you end up serving jail time, an injured accident victim can still file a civil suit against you (you might even be served while sitting in jail). It’s also important to note that the lack of a criminal conviction does not necessarily mean you will win a civil lawsuit, as different burdens of proof are used in civil courts than in criminal courts.

About the Author

Travis Patterson is a local Fort Worth Car Accident Attorney. Travis is a founder of neighboring personal injury law firm, Patterson Law Group. Travis has dedicated his life’s work to helping injured victims recover after accidents. He contributed this article for educational purposes only. This content should not be construed as legal advice, nor does it create an attorney-client relationship whatsoever between the reader and Mr. Patterson or his law firm.

 

The post Drunk Driving Accidents: Consequences You May Not Have Considered appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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Is CBD Oil Legal in Texas?

CBD Oil is legal by prescription in Texas to treat seizures caused by intractable epilepsy. CBD Oil is not legal in Texas recreationally, for pain relief, anxiety, or depression.

Although CBD Oils can be legally prescribed in Texas for limited purposes, federal law does not allow doctors to prescribe any substance derived from the Cannabis Sativa L plant. While other states fill medical marijuana orders based on doctor “recommendations” instead of prescriptions, Texas law requires a prescription for CBD oil in order for it to be legal.

Is CBD Oil Illegal in Texas?

While this is seemingly the opposite of the last question, whether CBD oil is illegal in Texas is a complicated question that we will work through in this article. First, some background:

What is CBD Oil?

CBD is short for Cannabidiol. Like THC, it is one of 85 cannabinoids present in the cannabis plant. CBD Oil contains high levels of CBD and trace amounts of THC. The lack of high levels of THC makes CBD Oils non-psychoactive.

What is THC?

THC is short for Tetrahydrocannabinol. This is one of many chemical compounds found in cannabis. THC is responsible for the psychological and euphoric effects of the drug; in other words, it is what makes people feel “high” when they smoke or ingest marijuana.

How is CBD Different From THC?

The short answer is, unlike THC, CBD is not psychotropic. Consequently, it doesn’t result in a euphoric high the way THC does.

CBD oils and George WashingtonThe longer answer is far more interesting. It is important to first distinguish marijuana from hemp. Scientifically, both marijuana and hemp come from the “cannabis sativa” plant, according to the USDA. Marijuana, though in the same scientific family as hemp, presents as a much smaller plant. Hemp, the taller and more fibrous version of the sativa plant has a long history in the United States. In fact, George Washington grew hemp on Mount Vernon.

Over years of breeding, the cannabis plant was developed to have high levels of THC. It is this breeding to elevate THC levels that has spurred the illegal marijuana market. Because CBD comes from an entirely different plant than marijuana, its chemical properties are different.

THC is found in large quantities in cannabis, or what most people think of as the marijuana plant. Unlike cannabis, or marijuana, hemp contains low concentrations of THC. CBD Oils are generally made from the hemp plant so they contain high levels of CBD and trace levels of THC. As a result, CBD provides a less controversial alternative to THC for health benefits.

CBD Oil in Texas

Texas CBD OilIn 2015, Governor Greg Abbott signed into law what’s known as the Texas Compassionate Use Act, which allows the use of CBD oils to treat seizures caused by intractable epilepsy. The Act legalizes oils containing CBD for treatment of epilepsy, as well as other chronic medical conditions for those who have not responded positively to use of federally approved medications.

The Act authorizes the Department of Public Safety to license dispensing organizations, which function similar to compounding pharmacies. Only neurologists and epileptologists are able to offer prescriptions for CBD oil. While the law was implemented in 2015, access to CBD was delayed until 2017 to allow for additional time to create a system to ensure that distribution is confined to genuine medical necessity along with a detailed registry identifying doctors and dispensaries.

You won’t find the word “Cannabidiol” in Texas laws defining illegal substances or banning their possession or distribution. You also won’t find any of the other descriptors of Cannabidol found on the Open Chemistry Database maintained by the National Center for Biotechnology Information or in any penalty group in Texas. However, if possessed without medical necessity, it is arguable that CDB Oil would be considered a Penalty Group 2, illegal substance. Penalty Group 2 applies to hallucinogens, their salts, isomers, and salts of isomers. It does include substances like Dronabinol and Tetrahydrocannabinols.

How could CDB Oils be Prosecuted in Texas?

Despite articles that discuss marijuana possession in relation to CBD Oils, possession of CBD Oil is specifically distinguished from the possession of marijuana in Texas. Texas Health and Safety Code Section 481.002 excludes oils and resins from the definition of marijuana (or “marihuana” as the Texas Legislature insists on spelling it). Instead, a prosecutor presented with a CBD Oil case is likely to argue that it falls within this definition found in the list of Penalty Group 2 substances. Instead of characterizing CBD as marijuana, Texas law added this language to the definition of Penalty Group 2.:

Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as: delta-1 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-6 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-3, 4 cis or trans tetrahydrocannabinol, and its optical isomers; or
compounds of these structures, regardless of numerical designation of atomic positions, since nomenclature of these substances is not internationally standardized;

However, the defense may be able prove that the CBD oil in question did not contain THC, and was not similar to THC in its pharmacological activity.

A prosecutor will also make the argument that the legislature would not have to pass the Compassionate Care Act if cannabidol were already legal.

Think Twice About Selling CBD Oils

Under current federal law, sellers of CBD Oils who describe the medical benefits of CBD Oils should at the very least expect to get a Cease and Desist letter from the FDA with language along the lines of:

Your product is not generally recognized as safe and effective for the referenced uses and, therefore, the product is a “new drug” under section 201(p) of the Act [21 U.S.C. § 321(p)]. New drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, as described in section 505(a) of the Act [21 U.S.C. § 355(a)]; see also section 301(d) of the Act [21 U.S.C. § 331(d)]. FDA approves a new drug on the basis of scientific data submitted by a drug sponsor to demonstrate that the drug is safe and effective.

Furthermore, your product is offered for conditions that are not amenable to self-diagnosis and treatment by individuals who are not medical practitioners; therefore, adequate directions for use cannot be written so that a layperson can use this drug safely for its intended purposes. Thus, ______ is misbranded within the meaning of section 502(f)(1) of the Act, in that its labeling fails to bear adequate directions for use [21 U.S.C. § 352(f)(1)]. The introduction of a misbranded drug into interstate commerce is a violation of section 301(a) of the Act [21 U.S.C. § 331(a)].

What can CBD Oil be Prescribed for in Texas?

Studies show CBD oil has promise in the following areas:
• Anxiety relief
• Anti-seizure
• Pain relief

However, in Texas, the only approved treatment at this time or the reduction or elimination of seizures. Notably, Florida passed a similar law in 2014; but in 2016, voters amended the law to allow for full THC forms of cannabis for those suffering from a broader variety of medical conditions, such as PTSD, MS, cancer, and HIV. Texas does not allow CBD oil for Parkinson’s patients.

In May of 2017, the Texas Department of Public Safety awarded licenses to produce, process, and dispense CBD oil to three companies. These companies, Cansortium Texas, Compassionate Cultivation, and Surterra Texas, will each pay a licensing fee in order to operate facilities to produce and dispense CBD oils under the Compassionate Use Act.

Are THC Oils and Waxes Legal in Texas?

No. As of August 2017, possessing THC oil is not only a crime but also considered a more serious crime than possessing marijuana in its traditional form. In Texas, it is a felony to possess THC oil or wax. The seriousness of the felony varies based on the amount of THC oil possessed. For example, possession of less than one gram of THC oil is a state jail felony that is punishable by up to two years in jail, with a minimum of six months in prison. Additionally, a state jail felony comes with a fine of up to $10,000.

Possessing one to four grams of THC oil is a third-degree felony, punishable by a minimum of two years in prison, with a maximum 10-year prison term. Like state jail felonies, third-degree felonies come with a fine of up to $10,000.

Possession of four to 400 grams of THC oil or wax is a second-degree felony. In Texas, a second-degree felony is punishable by up to 20 years in prison. Like third-degree felonies, this offense carries a minimum sentence of two years in prison and a fine of up to $10,000.

Finally, possession of more than 400 grams of THC oil or THC wax is classified as a first-degree felony. This is the most serious felony in which someone can be charged for possessing THC oil or wax. This crime is punishable by up to 99 years in prison. This crime also carries a minimum sentence of five years in prison and a fine of up to $10,000.

Changes in Texas Law

House Bill 2107 was brought during the 2017 legislative session with a number of vocal supporters. The bill sought to remove the “low THC” restriction and amend the law to allow for “medicinal marijuana.” It also sought to expand the types of conditions that can be treated with cannabis by including post-traumatic stress disorder and terminal cancer. Finally, the bill sought to modify the language, from requiring a doctor’s prescription to requiring a doctor’s recommendation. This change intended to address concerns about the legality of physicians prescribing something prohibited by federal law. Despite having 77 sponsors and co-sponsors, 29 of whom were Republican, the bill died in committee. Given strong support, as well as national trends, changes in Texas law are likely to occur in the future.

As recently as July of 2018, the Texas Department of State Health Services backed off a decision to regulate products the include more than .03% CBD.

Contact Us

The complicated nature of the laws governing CBD oils makes the possession of CBD oil very defensible, especially if the CDB oil has no detectable amount of THC. If you have been arrested for an offense arising from the possession of CBD oil in North Texas, contact us at (817) 203-2220 or online:

The post Is CBD Oil Legal in Texas? | CBD Oil Prescriptions in Texas appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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Varghese Summersett PLLC Ranks No. 782 on the 2018 Inc. 5000
With Three-Year Revenue Growth of 639 Percent 

Inc. magazine today revealed on August 15 that the Fort Worth law firm of Varghese Summersett PLLC is No. 782 on its 37th annual Inc. 5000, the most prestigious ranking of the nation’s fastest-growing private companies. The list represents a unique look at the most successful companies within the American economy’s most dynamic segment—its independent small businesses. Microsoft, Dell, Domino’s Pizza, Pandora, Timberland, LinkedIn, Yelp, Zillow, and many other well-known names gained their first national exposure as honorees on the Inc. 5000.

 “We are honored to have made Inc. Magazine’s list of America’s fastest-growing companies,” said Benson Varghese, founder and managing partner of Varghese Summersett. “In four years, we’ve gone from hanging a shingle to becoming the largest criminal defense firm in North Texas. At the core of our success is a fantastic group of people. Fort Worth is home to a lot of great talent, and the community has embraced our efforts to provide unparalleled legal service. We’ve also recently added a family law practice, which we are very excited about.”

 Not only have the companies on the 2018 Inc. 5000 (which are listed online at Inc.com, with the top 500 companies featured in the September issue of Inc., available on newsstands August 15) been very competitive within their markets, but the list as a whole shows staggering growth compared with prior lists. The 2018 Inc. 5000 achieved an astounding three-year average growth of 538.2 percent, and a median rate of 171.8 percent. The Inc. 5000’s aggregate revenue was $206.1 billion in 2017, accounting for 664,095 jobs over the past three years.

 Complete results of the Inc. 5000, including company profiles and an interactive database that can be sorted by industry, region, and other criteria, can be found at www.inc.com/inc5000.

 “If your company is on the Inc. 5000, it’s unparalleled recognition of your years of hard work and sacrifice,” says Inc. editor in chief James Ledbetter. “The lines of business may come and go, or come and stay. What doesn’t change is the way entrepreneurs create and accelerate the forces that shape our lives.”

The annual Inc. 5000 event honoring the companies on the list will be held October 17 to 19, 2018, at the JW Marriott San Antonio Hill Country Resort, in San Antonio, Texas. As always, speakers include some of the greatest innovators and business leaders of our generation.

Varghese Summersett PLLC is the largest criminal defense firm in Tarrant County. The firm's attorneys represent clients at both the state and federal level and handle everything from DWI to murder to white collar crimes. Collectively, the attorneys bring together more than 100 years of criminal law experience and have tried more than 550 cases before Texas juries. All of the senior attorneys served as former state or federal prosecutors and four are Board Certified in Criminal Law, the highest designation an attorney can reach.

 


 
 

 

 

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As college students settle into the new sememster, jail is probably the last thing on their minds. But unfortunately, students are arrested every day for various offenses that could land them behind bars and subject them to hefty fines. Here are the top five college student crimes and what you should do if you do find yourself in handcuffs.

Possession of Marijuana

Marijuana is legal in a growing number of states, but Texas isn’t one of them. In Texas, it is still illegal to possess any amount of marijuana. While possession of drug paraphernalia is only a ticket, having a useable quantity can land you in jail for up to six months. Amounts as low as a third of a gram have been determined to be a usable quantity. As the quantity goes up, so does the punishment range.

 

Possession of Drug Paraphernalia Class C Misdemeanor $0-500 Fine
Possession of Marijuana Under Two Ounces Class B Misdemeanor Up to 180 days in Jail,$0-2,000 fine
Possession of Marijuana 2-4 oz Class A Misdemeanor Up to 1 year in Jail,$0-4,000 fine
Possession of Marijuana 4 oz to 5 lbs State Jail Felony 180 days – 2 Years, State Jail, Up to $10,000 fine.
Possession of Marijuana 5-50 lbs Third Degree Felony 2-10 Years Penitentiary, Up to $10,000 fine
Possession of Marijuana 50-2000 lbs Second Degree Felony 2-20 Years Penitentiary, Up to $10,000 fine.
Possession of Marijuana 2000+ lbs First Degree Felony 5-99 Years/Life,Up to $50,000 fine*

 

Theft 

Shoplifting is one of the most common offenses for which students are arrested. Almost every student accused of theft starts their story off the same way: “I wasn’t thinking, and I never thought I would get caught.”  A theft conviction is one of the worst convictions because it is considered a crime of moral turpitude, which could jeopardize scholarships, student loans, housing, and employment opportunities.

 

Theft Under $50 Class C Misdemeanor $0-500 Fine
Theft $50-500 Class B Misdemeanor Up to 180 days in Jail,$0-2,000 fine
Theft $500-$1500 Class A Misdemeanor Up to 1 year in Jail,$0-4,000 fine
Theft $1,500 – 20,000 State Jail Felony 180 days – 2 years, State Jail,Up to $10,000 fine
Theft $20, 000- 100,000 Third Degree Felony 2-10 Years Penitentiary,Up to $10,000 fine
Theft 100,000 – 200,000 Second Degree Felony 2-20 Years Penitentiary,Up to $10,000 fine
Theft over $200,000 First Degree Felony 5-99 Years/Life,Up to $10,000 fine

 

Assault  

In Texas, you can be charged with assault bodily injury if you hurt another person. If that person was even slightly injured, you could be looking at a year in jail. If you have that same fight with a peace officer, you could be facing 10 years in the penitentiary.

 

Assault by Contact Class C Misdemeanor $0-500 Fine
Assault Bodily Injury Class A Misdemeanor Up to 1 year in Jail, Up to $4,000 fine
Assault Public Servant – Bodily Injury Third Degree Felony 2-10 Years Penitentiary, Up to $10,000 fine
Aggravated Assault Deadly Weapon Second Degree Felony

2-20 Years Penitentiary,

Up to $10,000 fine

Assault Public Servant – Deadly Weapon First Degree Felony

5-99 Years/Life,

Up to $10,000 fine

 

Driving While Intoxicated

Being arrested for DWI is a very common charge for college students. In Texas, you can be legally intoxicated with any level of alcohol in your system. That’s because the prosecutors have three ways to prove you were intoxicated:

1. Blood alcohol concentration of .08 or greater, or
2. Not normal mentally due to the introduction of alcohol into the body, or
3. Not normal physically due to the introduction of alcohol into the body.

The last two definitions mean a person could be intoxicated at almost any blood alcohol concentration. Additionally, if you have any detectable of alcohol in your system under the age of 21, you can be charged with Driving Under the Influence (DUI) even if you are not intoxicated. In Texas, penalty ranges for DWI can depend on your BAC., whether you have priors, and the age of the passengers in the vehicle.

 

Driving Under the Influence Class C Misdemeanor $0-500 Fine
Driving While Intoxicated Class B Misdemeanor 3-180 days in Jail,Up to a $2,000 Fine
Driving While Intoxicated Blood Alcohol Concentration Equal to or Above .15 Class A Misdemeanor Up to 1 year in Jail,Up to a $4,000 fine
Driving While Intoxicated (Second) Class A Misdemeanor 30 days to 1 year in Jail, Up to a $4,000 fine
DWI with Child Passenger State Jail Felony 180 days – 2 Years State Jail, Up to $10,000 fine
DWI Felony (Third or more) Third Degree Felony 2-10 Years Penitentiary, Up to $10,000 fine

 

Criminal Trespass 

Students are often charged with criminal trespass. This can occur, for example, when a group of students decides to enter restricted areas on campus, explore abandoned buildings, or return to a location where they have ben prohibited.

 

Criminal Trespass Class B Misdemeanor 3-180 days in Jail. Up to a $2,000 Fine
Criminal Trespass Habitation Class A Misdemeanor Up to 1 year in Jail, $0-4,000 fine

 

How to Avoid a Conviction and Not Go to Jail

If you are arrested for any of these offenses, it’s important to contact a seasoned criminal defense attorney who has experience negotiating dismissals, no-bills and options that avoid a criminal conviction. Many first time offenders are eligible for diversion programs.

 

Outcome Conviction Cases Can the Record Be Sealed?
Dismissal No All types of cases Expunction Eligible
No Bill No Felony Cases Expunction Eligible
DIRECT Diversion Program No Drug Cases Expunction Eligible
FAIP Diversion Program Yes Felony DWI Cases  No.
Veteran’s Diversion Program No. Varies Expunction Eligible
DPP Diversion Program No. First-time offenders including Theft and Possession of Marijuana Expunction Eligible
Deferred Adjudication No All misdemeanors, most felonies Expunction on Class C offenses, Non-disclosures on everything else.

 

Contact us

Our team consists of Board Certified Criminal Law Specialists and former state and federal prosecutors with a proven track record of success. Call us at (817) 203-2220 for a complimentary strategy session.  During this call we will:

  • Discuss the facts of your case;
  • Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
  • Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.

You can also contact us online:

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The post College Student Crimes: How to Avoid a Criminal Conviction in College appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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Go to any college town in Texas, and there’s a high likelihood many students will have a fake ID tucked in their purse or pocket. In fact, it may be the one thing they never leave home without.

While a fake ID may be an underclassman’s most prized possession, it comes with big risks. Not only can using a fake ID in Texas land a student in trouble with the law, but it could possibly lead to school disciplinary action. Here’s a crash course on the law and the potential consequences of using a fake ID in Texas.

What are the Laws Regarding Fake IDs in Texas?

There are a number of ways college students obtain fake IDs in Texas. Some may borrow an ID from an older sibling or friend who bears a resemblance. Others may purchase a fake ID online. Some may attempt to forge or alter their birth date on a license or present a fake birth document to obtain a driver’s license or state ID card.  All of these scenarios would be illegal under Texas law and the offenses range from misdemeanors tickets to felonies.

Possession of a Fake Driver's LicenseClass A Misdemeanor
Misrepresentation of Age by MinorClass C Misdemeanor
Fictitious License or CertificateClass C Misdemeanor
Tampering with a Government RecordThird Degree Felony

Possession of a Fake Driver’s License in Texas

Texas Transportation Code 521.451 prohibits fake IDs in several ways, including lending your ID to another person, having more than one driver’s license, or providing false information when applying for a license or ID card. The statute states that a person may not:

  1. Knowingly display or possess a driver’s license or certificate that is fictitious or has been altered;
  2. Lend his or her driver’s license or certificate to another individual, or knowingly let another person use the license or certificate;
  3. Display or represent as his or her own another person’s driver license or certificate;
  4. Possess more than one valid certificates or driver’s licenses; or
  5. Provide a false name, address, or counterfeit document, or knowingly provide a false statement, omit information, or commit fraud in a renewal, original application, or application for a duplicate driver’s license or certificate.

Punishment for Possession of a Fake Driver’s License in Texas

Violation of this statute is a Class A misdemeanor, punishable by up to a year in jail and a $4,000 fine.

Misrepresentation of Age by a Minor

Under the Texas Alcoholic Beverage Code 106.07, a minor commits an offense if he or she falsely states that he or she is 21 years of age or older and presents any document that indicates that he or she is 21 years of age or older to a person engaged in selling or serving alcoholic beverages. An example of this might be misrepresenting yourself as 21 to a doorman at a bar.

Punishment for Misrepresentation of Age by a Minor

This offense is a Class C Misdemeanor punishable by up to a $500 fine. Misrepresentation of age by a minor is the most common fake ID offense in Texas.

Fictitious License or Certificate

Under Texas Transportation Code 521.453, it’s illegal to possess a fictitious license or certificate. The statute states that a person commits the offense of possession of a fictitious license if they possess, with the intent to represent that they are 21 years of age or older, a “deceptively similar” driver license or ID certificate – unless the document displays the statement “Not a Government Document” printed in ¼ inch solid red capital letters diagonally on both sides.

Punishment for Fictitious License or Certificate

This offense is considered a Class C Misdemeanor, which carries a penalty of up to a $500 if convicted.

Tampering with a Government Record

Texas Penal Code 37.10 is the statute that most likely would apply to someone who altered a driver’s license or identification card. An individual commits the offense of tampering with a government record if he or she:

  1. knowingly makes a false entry in, or false alteration of, a governmental record;
  2. makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;
  3. intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;
  4. possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully;
  5. makes, presents, or uses a governmental record with knowledge of its falsity;
  6. possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.

Punishment for Tampering with a Government Record

This offense is considered a third degree felony, punishable by 2 to 10 years in prison and up to a $10,000 fine.

Can the Bar or Restaurant where I Used my Fake ID in Texas Get in Trouble?

Absolutely. In fact, the Texas Alcoholic Beverage Commission often conducts undercover operations where they knowing send minor-aged people into stores, bars and restaurants to purchase alcohol. If the sale is successful, the business and its employees could face administrative or criminal charges. For example, last summer the TABC announced that they would be conducting a series of back-to-school undercover operations as tens of thousands of college and university students head back to class.

How do Underage Students Get Caught Using a Fake ID?

Most of the time, an astute bouncer or bartender will notice the fake ID. In some cases – if the student is lucky – they will just take up the ID. The worst case scenario occurs when police are contacted and the student is ticketed or arrested.

Is There Any Way I Can Legally Drink before Age 21 in Texas?

Yes, with your parents. In Texas, minors can drink in the presence of their adult parent, guardian or spouse.

What Should I Do if I Get Arrested for a Fake ID?

If you are caught with a fake ID or manufacturing or selling counterfeit identification, call the law offices of Varghese Summersett as soon as possible. It’s imperative that our team gets to work immediately in an effort to prevent or defend a criminal prosecution. The ultimate goal would be to try and avoid a criminal conviction, which could go on your record and have far-reaching effects. Also, our attorneys will work to get in front of any school disciplinary hearings that could stem from the offense. Our consultations are confidential and you can call us even before you contact your parents.  Call 817-203-2220 today find out how we can help.

The post Using a Fake ID in Texas: A Look at the Criminal Consequences appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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For many years, bonds in Tarrant County were set by municipal magistrates throughout the county. This meant individuals in different cities could receive vastly different bond amounts based on where they were arrested and which magistrate was on duty at the time. The process had its advantages – bonds were set quickly, and the bond amounts could be addressed again by a magistrate at the county-level, where bonds were generally set more uniformly. Yet, the process is not without its problems.

2017 study published by the Texas Judicial Council and Texas A&M criticized the methods in place in Tarrant County, noting only 6 percent of accused individuals were released on a personal bond compared to 60 percent of individuals in Travis County, which used a risk-based release system instead of a financial means based release system. (Tarrant and Travis “are the third and fifth most populous jurisdictions in Texas, home to 2.0 million and 1.2 million residents, respectively. Both metro areas are counted among the fastest growing in the state. Travis County has a jail population of approximately 2,600, of whom 75 percent are being held pretrial. Tarrant County jails currently hold about 3,400 defendants, 62 percent of whom are awaiting trial.”)

The study also found that each additional day of detention up to 30 days increased the likelihood of conviction by 2 percent each day.

At the beginning of 2018, Tarrant County’s new sheriff, Bill Waybourn, changed four decades of the county’s “customary practice” of housing arrestees at city jails and began to follow the requirements of Texas law under Article 2.18 of the Code of Criminal Procedure. The Code requires a person jailed on a warrant or court order to go into the custody of the sheriff – not city jails.

Additionally, this year the federal Fifth Circuit Court of Appeals also handed down, ODonnel v. Harris County – the type of case that keeps judges awake at night.

At issue in ODonnel was Harris County’s bail bond process. The Fifth Circuit ruled that the bail bond processes in Harris County violated Equal Protection, Due Process, and Texas law.

Texas Code of Criminal Procedure 17.15 requires judges to make an individualized assessment based on five factors, including the person’s ability to pay, the nature of the charge, and community safety. At the trial level, federal District Court Judge Lee H. Rosenthal wrote an opinion — over 190 pages long — blasting the realities of the Harris County system, where 40 percent of individuals charged with misdemeanors stayed in jail until their cases were resolved. In many of these cases, those accused could go home with “credit for time served” if they entered a guilty plea and accepted conviction – incentivizing pleas for individuals who could not afford to make bond.

Changes in Tarrant County’s Bail Bond Process

As a result of the ODonnel opinion, and the sheriff housing more inmates, the bail bond process in Tarrant County has had a number of changes. The magistrates are making an attempt to more carefully consider the 17.15 factors to make individualized determinations for individuals who have been arrested. These factors include:

  1. Considering whether the bond is set sufficiently high to ensure compliance. (In other words, is the financial consequence significant enough to ensure the accused will show up in court without a warrant being issued for their arrest?)
  2. Establishing that the bond is set low enough that it is not being used as an instrument of oppression. Remember, individuals charged with crimes are cloaked with a presumption of innocence. Bail bonds are not meant to be punitive or punishment, although for the citizen accused, it certainly can seem like everyone is treating them like they are already convicted.
  3. Evaluating the nature of the offense and the circumstances under which it was committed. (The initial arraignment is not an adversarial process, so the nature and circumstances are whatever is included the arrest warrant or probable cause affidavit, which are assuredly one-sided.)
  4. Considering the accused’s ability to make bond. Here the court can hear evidence on the accused’s ability (or inability to pay), but remember this is only one of the factors the court is required to consider.
  5. Ensuring the future safety of the victim and the community.

Tarrant County’s magistrates are requiring accused citizens to complete forms that disclose their ability to pay and to go through “risk assessments” to determine if they are likely to re-offend while on bond.

Why is it taking days to get someone out of Tarrant County custody?

The most common question we get now that Tarrant County has moved to central magistration is, “Why it is taking so long to get someone out of custody?” What used to take hours is now taking days. There are several reasons for this.

  1. As this article explains, the Tarrant County Central Magistration system requires information to be gathered and prepared for the magistrate to consider and this takes time.
  2. Tarrant County has not adapted to the sheer number of people who must be taken in front of magistrates.
  3. Magistration takes place three times a day, and not around the clock.
  4. Arrestees are sometimes only released to CSCD – meaning someone arraigned on Friday may not get out until Monday, even if they can pay the bond.

The Tarrant County Central Magistration: Four Steps

Tim Curry Justice Center

Now that a centralized magistrate system has been implemented by Tarrant County, magistrates are setting a person’s bond based on the alleged facts of the offense, risk, financial assessments, and an individual’s history of appearing in court – not based on recommended guidelines.  They are following four steps:

Step One: The magistrate judge will review the alleged facts of the offense. This review will include the Probable Cause affidavit, any commitment order, and the offense report if one is available. Notice these are all documents prepared by law enforcement. This initial hearing is not adversarial, so the defense attorney is generally unable to submit information for consideration at this initial setting. (The defense attorney may later file a Motion for Reconsideration if they would like to present evidence.)

Step Two: Magistrate staff will administer a risk assessment tool provided by Noble – the Ohio Risk Assessment System – which was highly recommended in the Texas Judicial Council and Texas A&M Study. ORAS has been used with great success through the country and has been in place for years in other jurisdictions in the state.

ORAS in Texas

ORAS is driven by the TCIC/NCIC criminal history and other objective facts such as age, gender, etc. The objective assessment is completed without interviewing the accused. It gives the magistrates a sense of who the client is and the likelihood that they will show up to court when they are supposed to.

ORAS Assessment

The ORAS results are available to Noble, and the judges, but it is not available to defense counsel at this time. In the first part of 2018, out of the approximately 5,600 risk assessments that were run, 3,500 came back as low risk; 1,404 came back as moderate risk; 194 were high-risk to re-offend with a property crime; 483 were high-risk to re-offend with a non-violent crime; and 42 were high-risk to re-offend with a drug crime.

Step Three: Magistrate staff will provide the judge with a “Failure to Appear Score” – which is a review of the last two years’ worth of data on the accused’s compliance with any past court settings. The Failure to Appear Score is based on the number of cases a person has had, the number of settings they missed, and the bond was held insufficient as a result. The Failure to Appear Score gives the magistrate a tool to assess the likelihood of a person showing up in court.

Step Four: The Financial Assessment which is referred to as the FART (Financial Assessment for Rapid Transmission, which could have easily been “Swift” instead of Rapid…) or information available to the magistrate through Tech Share Indigent Defense. The magistrate judges have assured us the information obtained from the citizens-accused is merely biographical and basic financial information and that these individuals will not be questioned without their attorneys.

The terribly-named FART Assessment seeks to provide the magistrate with a sense of the arrestee’s ability to pay for the bond. This assessment is completed by sheriff’s deputies as arrestees are booked-in at the jail. Question areas include:

  • Income
  • Expenses
  • Employment
  • Transportation
  • How long the person has lived in Tarrant County

If a person has asked for court-appointed counsel, the magistrate will also have the responses from that interview.

Once these steps are completed, bond conditions and the bond amount is set by the magistrate. The bond conditions are noted in triplicate with a copy that the accused signs.

As of July 1, 2018, North Richland Hills is the only municipality that is still setting its own bonds. Every other municipality is now using the Central Magistration system, which brings us to the Number 1 criticism of the new system:  The process of being booked in, bonded, and booked-out can now take 4 to 48 hours instead of what could have been done with a walk-through or a 1 to 2 hour process.

Motions to Modify Bonds

As a practical matter, having the bond modified after it is set will take a significant period of time if the modification is referred to magistrate court. After the preliminary bond has been set, a Motion to Reduce Bond may be filed with the court. The Motion may be referred to the magistrate court. If the matter is referred to the magistrate court, take the referral to the mag court coordinator. Let the coordinator know if a court reporter will be necessary. A hearing will be set with notice to both sides.

Motions to Set Revocation Bonds

In the past, when a Motion to Adjudicate or Motion to Revoke a probationer was filed, a hold was generally placed to prevent a bond from being set until the district court judge was willing to set the bond. Additionally, revocation bonds were not set if the court fees and costs were past due. Now, if a “Hold, No Bond” appears on the motion, the magistrate will still not set a bond. However, the district court judges also have the option to now put “Bond to be set by Magistrate” on the face of the Motion to Adjudicate or Revoke. If the motion is so designated, the defense attorney can contact the Mag Court coordinator to begin the Risk Assessment and Failure to Appear score and the magistrate can set a bond. The magistrate can now consider whether the fees are paid, but it is no longer an absolute requirement for bonds to be set. CSCD has now also made the chronological files or “chronos” available to the magistrate and judges to consider when setting a bond. Depending on which court the case is probated out for, the person may be released to “CSCD only” meaning the person could spend a few more days in jail after the bond is posted, just waiting for a probation officer to become available to process them out. (The typical example is someone whose bond is set on a Friday with “release to CSCD” as a condition. Even if the bond is posted, the person will likely not be released from custody until early to mid-morning on Monday.)

Unfiled Case Dockets

Every Tuesday and Thursday afternoon, individuals who are in custody but no case has been filed are brought to court to make bond determinations. An accused cannot be held without a reasonable or personal bond for more than:

  • 90 days on a felony without an indictment
  • 30 days on a Class A misdemeanor
  • 15 days on a Class B misdemeanor
  • 5 days on a Class C misdemeanor.

Warrantless Arrests

In the case of a warrantless arrest, there are special rules involving bail. In the case of an arrest in which there was a warrant, a magistrate has already determined that there is probable cause to believe the accused committed a crime. This is not so in the case of a warrantless arrest and the magistrate will be required to determine probable cause.

If someone is arrested for a misdemeanor, the magistrate must make a probable cause determination within 24 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $5,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond.

If someone is arrested for a felony, the magistrate must make a probable cause determination within 48 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $10,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond. (TX CCP Art. 17.033)

Contact our Tarrant County Defense Lawyers

If you or a loved one has been arrested for an alleged offense in Tarrant County, give us a call at (817) 203-2220 or send us a message online.

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In a recent 5-4 decision, the Supreme Court held that police generally need a search warrant to gain access to your cellphone’s location information. Specifically, in Carpenter v. United States, the Court noted allowing the police to access minute-to-minute location information is the type of surveillance the Constitution’s framers sought to protect against without a search warrant. The Court went on to say that giving police this tracking information without a warrant would be akin to making someone wear an ankle-monitor without a judge’s order.

The Fourth Amendment and Cell Site Location Information

The Fourth Amendment protects your property interests and provides for some privacy protections. The text of this amendment states that you are protected from unreasonable searches and seizures, and that you, your home, your papers, and your things are secure and protected from warrantless search. Furthermore, warrants are to be issued only when probable cause is found, supported either by oath or other affirmation, which includes detail on what is to be searched, where it will be searched, and the person or items that need to be seized.

Probable cause is present for a crime when your actions (facts and circumstances) lead to a reasonable suspicion and need for further information. As the Court reiterated, warrants need “some quantum of individualized suspicion.” U.S. v. Martinez-Fuerte, 428 U.S. 543, 560–561 (1976).

The point of the Fourth Amendment is to keep the government from unreasonably intruding into your life and your freedom. This being said, there are exceptions (consent to the search, imminent danger, exigent circumstances, a search incident to arrest, items in plain view, etc. to name a few) to Fourth Amendment protections, so long as the government is doing the searching and so long as the search is reasonable.

Cell Phone Location Data

Cell phones communicate with cell sites, which can be found at cellphone towers, some light-posts, tops of buildings, and many other areas. When you move with your cell phone, the phone connects to these cell sites and when you place a call or send a text, the phone time stamps the activity which can be stored. This time-stamped information is called cell-site location information or CSLI. Cell site location information is often stored by service providers for years.

There are over 300,000 cell sites in the United States. Your cellphone provider takes the information relayed to cell sites and stores the information to improve their service and coverage. Today, CSLI includes location information that is fairly accurate.

cell site data

Carpenter v. United States (2018)

After a string of robberies in 2010 and 2011, police caught several suspects. Ironically, the robberies were for cell phones being taken from stores like Radio Shack and T-Mobile.  One of them confessed to a series of nine robberies and provided details about their leader, Timothy Carpenter. The police then requested an order for 127 days of tracking information from Carpenter’s cellphone provider. Using all the data received, there were 12,898 data points regarding locations that followed Carpenter’s movements. The location on Carpenter’s phone closely matched the places where robberies occurred and this location information was used as evidence in his conviction. Carpenter was convicted of multiple robbery counts and multiple counts of carrying a firearm during a federal, violent crime.

Carpenter appealed arguing that he was protected from a warrantless search of his cell phone records. Instead of getting a warrant, the police had obtained a court order using the Stored Communications Act (18 U. S. C. §2703(d)). This law allows phone companies to give your records to police if there were reasonable grounds to believe that the records needed would move a criminal investigation along. The standard was lower using this law than the requirements for a warrant, since police just needed specific and articulable facts that led to a reasonable belief that information requested would be related and important (relevant and material) to the investigation. The Stored Communications Act requires “specific and articulable facts showing there are reasonable grounds to believe” that electronic data being sought is relevant to an ongoing criminal investigation. The Stored Communications Act, however, did not require a showing of probable cause.

Carpenter argued obtaining his Cell Site Location Information amounted to a Fourth Amendment search. The Supreme Court focused on whether the third-party doctrine applied to cell site location information. The third-party doctrine provides that the Fourth Amendment is not implicated when the police obtain information revealed to third parties (like bank records and call records.)

Expect to see litigation involving cell site simulators to reach the Supreme Court.

What changes with Carpenter v. United States?

Before, police did not need a warrant for a lot of cellphone information because if you were sharing your information with a third party, like your cellphone provider, getting access, for example, to the numbers you called was not protected. However, the justices recognized in this decision how tied we are to our phones, and that being able to track a phone’s location when it is practically always in our pockets, would be a gross violation of our expectation of privacy without first obtaining a search warrant.

The Court found that the facts of this case put it between two areas of law: your expectation of privacy when it comes to your location and your movements versus your expectation of privacy when you voluntarily give your information over to third parties (i.e. your cellphone provider). This ruling distinguished previous case law, such as giving over records of numbers dialed or business records from location-related records. In previous cases, information sought was more limited. Here, location information is a “comprehensive record” that provides accurate details of where you have been. Additionally, the court analyzed the fact that cell phones can log your location without you actually using the phone other than turning it on. Because of these two important facts, the Court held that unless an exception to the warrant requirement applies, police generally need a warrant supported by probable cause to be able to access location records.

What does Carpenter v. United States cover?

Specifically, the decision covered location information (CSLI). Police need a search warrant to access this location information from your phone.

What does Carpenter v. United States exclude?

Case precedent involving financial, banking, and office-related records still holds. Furthermore, warrantless searches may be performed in cases of emergencies or in cases of threats to national security. The Court specifically stated that the decision was very narrow, and that the decision did not cover real time CSLI or “tower dumps,” which is the process of downloading information about all the devices connected to a specific cell site during a specific time frame.

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Was your cell site location information obtained without a warrant in a criminal case? Give us a call at 817-203-2220.

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Collins v. Virginia

In an 8-1 decision, the Supreme Court decided that the automobile exception does not allow police to enter the curtilage of home to search a parked vehicle. In Collins v. Virginia, the Supreme Court addressed a case where officers conducted a search of a parked vehicle that was believed to be stolen.

The Supreme Court discussed two important aspects of Fourth Amendment. The Court looked at both the automobile exception to obtaining a warrant and a protected area of the home called the curtilage.

The Fourth Amendment provides protection for you, your house, and your property against searches and seizures that are unreasonable. There are exceptions to this rule; the Automobile Exception being one of the most frequently used exceptions to the Fourth Amendment.

The Automobile Exception

The Automobile Exception allows officers to search a vehicle without a warrant if they have probable cause to believe the vehicle has contraband or some other evidence related to a crime.

automobile exception
What is the automobile exception to the Fourth Amendment?

The reasoning behind the Automobile Exception is that vehicles are easy to move. This allows officers to prevent evidence from disappearing or being relocated.

The officer can conduct a search of the vehicle without getting a warrant as long as they have probable cause for the search. For example, if an officer is walking by a vehicle parked on a street and sees through the window what looks like a bag of cocaine on the seat, the officer can conduct a search of the vehicle without getting a warrant.

Probable cause exists when facts and circumstances known to the police officer would lead a reasonable person to believe that a crime has been committed or that property connected to a crime is located in a particular place.

What is a curtilage?

The curtilage is the area directly adjacent to the home or surrounding the home. It is important for searches because both the curtilage and the home are protected by the Fourth Amendment, meaning an officer needs a warrant to search either of these two areas.

curtilage
What is curtilage for Fourth Amendment purposes?

There is a four-factor test for whether an area is a curtilage which was established in United States v. Dunn. Courts consider:

  1. How close the area is to the house;
  2. Whether or not the area is within an enclosure by or around the home;
  3. What the area is used for; and
  4. Whether or not the resident of the home took steps to protect the area from observation or access to passers-by, and what the steps where.

Curtilage and the Automobile Exception

In Collins, Officer McCall of the Albemarle County Police Department in Virginia saw a driver commit a traffic violation on an orange and black motorcycle, but the driver eluded the officer’s attempts to stop. Another officer in the same department, Officer Rhodes, later saw a driver on an orange and black motorcycle speeding, but also was unable to stop the vehicle.

The officers compared notes and determined that the driver of the bike was the same individual on both occasions. After investigating, the officers found out that bike was stolen and in possession of a person named Ryan Collins. The officers then found photos of Collins on Facebook, where he was posing with an orange and black motorcycle at a house, in a driveway.

The officers determined that the home belonged to Collins’ girlfriend and that Collins stayed at the house several nights a week.

Officer Rhodes arrived to check things out. From the street, Officer Rhodes saw what he believed was a motorcycle under a tarp, parked the same way the motorbike in the Facebook photo was parked.

Without obtaining a warrant, Officer Rhodes walked up to the motorcycle, entering the enclosed area of the driveway it was parked in. The officer lifted the tarp covering the bike and, seeing that it was an orange and black motorcycle, took photographs of the vehicle and ran the plate number, which came up stolen. After replacing the tarp, Officer Rhodes went back to his vehicle and waited for Collins to return home.

After Collins came home, Officer Rhodes knocked on the front door and asked to speak to Collins, who agreed to the exchange. After being asked some questions, Collins admitted he bought the motorcycle without title and was arrested.

Collins v. Virginia – Legislative History

The trial court convicted Collins, specifically for receiving stolen property, despite Collins’ argument that Officer Rhodes had trespassed the curtilage of the home and conducted an illegal search without a warrant. After the case went to trial, the Court of Appeals in Virginia held that the officer had probable cause to believe the motorcycle under the tarp was the same as the one that evaded arrest and that the search of the bike without warrant was lawful under the Fourth Amendment because there were numerous exigencies that justified the officer’s entry and lifting of the tarp. The Supreme Court of Virginia reasoned further that the automobile exception to the search warrant requirement applied and that, as a result, the search without warrant was valid. The U.S. Supreme Court took on this case to determine whether the search was valid.

Federal Precedent

In past cases, the Supreme Court held an automobile search could be reasonable even without a warrant. For example, the Court discussed a case where officers had probable cause to think a car they saw traveling down the road had illegal liquor in it. Carroll v. United States, 267 U. S. 132 (1925). The officer stopped the car to search it and found (and seized) the alcohol and arrested the people in the car. Other cases also illustrated that the mobility of vehicles and their ability to quickly move evidence out of the jurisdiction meant that cars had a lesser expectation of privacy than a home. California v. Carney, 471 U. S. 386, 390 (1985); Cady v. Dombrowski, 413 U. S. 433, 441 (1973).

Collins v. Virginia – The Supreme Court Decision

The Court addressed three separate arguments made by the prosecution in Collins v. Virginia.

First, the Court considered whether Virginia’s reliance on Scher v. United States was misplaced. In Scher, officers received a tip that a particular car would be transporting bootleg alcohol at a specific date and time. The officers observed a vehicle that matched the description of the tip turning into a garage within the curtilage of the home. When the driver got out of the car, an officer came up to him and told the driver that a tip had been received about illegal substances in the car. After the driver confirmed the alcohol was in the trunk, the officer opened the trunk and found the liquor—seizing both the contraband and the driver. While the officer lacked a search warrant, the court found the search reasonable.

Unlike the attended car in Scher, here, the motorcycle was unattended and fully parked within the curtilage when the officer found it. The Court reiterated that Scher did not create a blanket rule allowing an officer to enter the curtilage without a warrant. The Court described Scher to be a case more about hot pursuit, rather than the automobile exception. [Hot pursuit falls under the warrant exception of exigent circumstances in criminal procedure and allows a cop to chase a suspect into a private area/home, meaning forcible entry is okay, if the officer saw a felony being committed and had to chase the suspect to prevent the person from hiding or getting rid of evidence.]

Further, the Court discussed that the Scher decision was tied to different facts than the case currently in front of the court.

Second, the Court addressed Virginia’s use of Pennsylvania v. Labron, and found it was also misplaced. In Labron, the vehicle in question was parked in the front driveway of Labron’s father-in-law’s house. However, Labron did not have a property interest in the farmhouse or the driveway himself that he could claim was protected by the Fourth Amendment.

In Collins, the Court held that if the area is curtilage, a parking patio or carport that an officer can see into from the street is just as protected from trespass and warrantless search as a garage that is totally enclosed.

As the last main argument, the Court looked at Virginia’s proposal for a bright-line rule in a socio-economic context. Essentially, the Court reasoned that affording one constitutional protection to people who can afford a covered garage would give them more constitutional rights than those who lack the resources for a garage adjacent to their home. The Court concluded that individualized case-by-case consideration as to whether an area is curtilage provides equal protection regardless of resources.

Collins v. Virginia – In Summary

An officer may not enter the curtilage of a home to conduct a warrantless search for a vehicle that may be parked there, assuming the officer did not follow the vehicle in hot pursuit.

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Is a Prior DWI Conviction an Element of a DWI Misdemeanor Repetition Offense or is it a Punishment Issue?

The Court of Criminal Appeals has ruled that for purposes of misdemeanor DWIs, the fact that a person has been previously convicted of one DWI is an issue to be reserved for punishment and is not an element of the offense that can be brought before a jury in the guilt-innocence phase. The decision handed down by the Court of Criminal Appeals this week could mean that cases tried by the Tarrant County District Attorney’s Office over the last couple of years could be reversed.

The issue before the Court of Criminal Appeals was whether one prior DWI (which enhances the DWI from a Class B misdemeanor to a Class A misdemeanor) is a punishment enhancement or whether the existence of a prior DWI was an element of the offense. This question is crucially important to every DWI-Misdemeanor Repetition (sometimes called DWI-Second) case tried to a jury in the state because the answer tells us whether the jury gets to hear about the prior DWI while they are determining guilt-innocence.

Typically, juries in criminal cases do not hear about prior bad acts or convictions when they are determining whether a person is guilty or not guilty of an alleged offense. There are many exceptions to this rule, but the rule allows the jury to focus on the question of guilt at hand. Those other bad acts and prior convictions are generally reserved for the punishment phase of a trial so the jury can determine what the appropriate sentence is in light of all those facts. The answer from the Court of Criminal Appeals is that for misdemeanors, the fact that there is one prior DWI conviction is a punishment issue and not an element of the offense which can be brought before the jury unless the punishment phase is reached.

[This is different than when a person has two prior DWIs because a third DWI is a felony offense. To get to a felony court, those priors must be proven as a “jurisdictional element” so the jury does get to hear about the jurisdictional priors in a felony DWI.]

Intermediate Court on Prior DWI as an Element vs. Punishment Issue

Defendant Jose Olivia was charged by information with Driving While Intoxicated. The information contained two pertinent paragraphs: one regarding the DWI currently being tried, and a second paragraph alleging a prior DWI conviction. Olivia was found guilty on the current DWI charge without any mention of the prior DWI conviction to the jury.

At the punishment stage of the trial, the State provided the jury with evidence of the prior DWI conviction. The jury found the prior conviction to be true and assessed a punishment of 180 days in jail. The final judgment on Olivia’s current DWI was labeled “DWI 2ND,” indicating that Olivia was convicted of a Class A Misdemeanor DWI.

On appeal, the 14th Court of Appeals in Houston reversed the conviction, reasoning that “a fact that elevates the degree of an offense” is an element of the underlying offense and must be proven beyond a reasonable doubt before the punishment stage. Specifically, the court pointed to the fact that Texas Penal Code §49.09 does not expressly state an individual “shall be punished,” which is significant because “shall” indicates mandatory action required by law. Ultimately, the court determined that introducing the prior conviction at punishment was “legally insufficient” to enhance the current DWI from a Class B misdemeanor to a Class A misdemeanor.

Court of Criminal Appeals on Prior DWI as an Element vs. Punishment Issue

The Court of Criminal Appeals granted a Petition for Discretionary Review to settle the element vs. punishment question for the entire state because there was disagreement among the intermediate court as to whether the one prior DWI conviction is an element of a DWI Misdemeanor Repetition case, or whether it was an enhancement to be proven in guilt-innocence. Notably, both the position of both the prosecutor and the defense before the Court of Criminal Appeals was that the prior DWI was an element of the offense, but the Court of Criminal Appeals disagreed with both sides in rendering its decision.

The Court of Criminal Appeals distinguished between priors that are raised in felony cases at the guilt-innocence phase as elements of the offense because those are necessary for a felony district court to have jurisdiction over the case. In a misdemeanor, although the offense level increases from a Class B misdemeanor to a Class A misdemeanor, it would still be tried in a misdemeanor court. The issue is one of punishment, not of guilt-innocence.

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If you’ve been charged with a DWI, give us a call. We will walk you through what to expect and how to mount your best defense. Call us at (817) 203-2220, or send us a message online:[/vc_column_text][/vc_column][/vc_row][vc_row remove_padding=”no-padding-vc-row”][vc_column]

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What is the Criminal Statute of Limitations in Texas?

The statute of limitations for a criminal case refers to how long prosecutors have to bring a case against a person. The statute of limitations vary for different offenses and are laid out in Article 12 of the Code of Criminal Procedure. By setting statute of limitations, the legislature tries to balance the need for victims to come forward with ability of the accused to have evidence for which to defend themselves. The statute of limitations for a criminal case is the time in which a case must be filed before being barred from prosecution due to delay. In other words, if the state fails to bring a case against a suspect within a certain time period, it loses the right to prosecute the case.

How Long are the Criminal Statutes of Limitations in Texas?

The criminal statute of limitations in Texas varies, depending on the severity of the offense. The statute of limitations for misdemeanors is two years. Unless specified, it’s three years for felonies. However, it’s important to point out that many felonies do carry a specified statute of limitations, usually at five years, seven years or ten years. Some criminal statute of limitations are based on the age of the victim. For some offenses, such as murder and aggravated sexual assault of a child, there is no criminal statute of limitations at all.

A Chart of  Statute of Limitations in Texas

Generally, the statute of limitations for criminal cases in Texas can be found under Chapter 12 of the Code of Criminal Procedure. Here’s a look at the statue of limitations for some common offenses:

OffenseLimitationStatute
Murder None12.01(1)
ManslaughterNone12.01(1)
Sexual Assault of a ChildNone12.01(1)
Aggravated Sexual Assault of a ChildNone12.01(1)
Sexual Assaults where DNA was collectedNone12.01(1)
Serial Sexual AssaultNone12.01(1)
Continuous Sexual AssaultNone12.01(1)
Indecency with a Child None12.01(1)
Leaving the scene of an accident resulting in deathNone12.01(1)
Trafficking of childNone12.01(1)
Continuous Trafficking of PersonsNone12.01(1)
Compelling Prostitution of Child under 18None12.01(1)
Theft by Trustee10 Years 12.01(2)
Theft by a Public Servant of Government Property10 Years 12.01(2)
Forgery or passing a forged instrument10 Years 12.01(2)
Injury to Elderly or Disabled (First Degree)10 Years 12.01(2)
Sexual Assault10 Years 12.01(2)
Arson10 Years 12.01(2)
Trafficking of persons 10 Years 12.01(2)
Compelling Prostitution10 Years 12.01(2)
Misapplication of fiduciary property 7 Years 12.01(3)
Securing fiduciary property by deception 7 Years 12.01(3)
Felony violation of Tax Code Chapter 162 7 Years 12.01(3)
False statement to obtain credit 7 Years 12.01(3)
Money laundering 7 Years 12.01(3)
Credit card or debit card abuse7 Years 12.01(3)
Fraudulent use or possession of identifying information 7 Years 12.01(3)
Medicaid fraud 7 Years 12.01(3)
Bigamy (generally)7 Years 12.01(3)
Theft5 years 12.01(4)
Robbery5 years 12.01(4)
Kidnapping (generally)5 years 12.01(4)
Burglary (generally)5 years 12.01(4)
Injury to Elderly or Disabled (Other than First Degree)5 years 12.01(4)
Abandoning or Endangering a Child 5 years 12.01(4)
Insurance Fraud 5 years 12.01(4)
Sexual Performance by a child If the victim was under 17 at the time of offense, 20 years from the victim's 18th birthday12.01(5)
Aggravated Kidnapping with intent to commit a sexual offenseIf the victim was under 17 at the time of offense, 20 years from the victim's 18th birthday12.01(5)
Injury to a Child Ten years from the 18th Birthday of the victim 12.01(6)
Other felonies 3 years12.01(7)
Misdemeanors2 years

What is the Statute of Limitations for a DWI in Texas?

The statute of limitations for a misdemeanor DWI is two years. This includes Driving While Intoxicated; Driving While Intoxicated – Misdemeanor Repetition; Driving While Intoxicated with a BAC >/= .15; and Driving While Intoxicated with an Open Container. The statute of limitations for Driving While Intoxicated with a Child Passenger and Driving While Intoxicated – Felony Repetition is three years. The statute of limitations for Intoxication Assault and Intoxication Manslaughter is three years.

Why Do We Have Statutes of Limitations?

Statutes of limitations exist because the passage of time affects the quality of evidence on both sides. Statutes of limitations protect individuals from having to defend themselves against charges when basic facts and evidence may have become obscured or deteriorated with the passage of time. As mentioned, statutes of limitations vary based on the offense and, for some crimes, there is no statute of limitations at all.  Additionally, the statute of limitations may be tolled, or suspended, under certain circumstances.

Can the Statute of Limitations Clock be Stopped?

The statute of limitations can be tolled (or paused) while the accused is absent from the state, by charging the person by indictment, information, or complaint.

What is “Tolling” of a Statute of Limitations?

Under certain circumstances, the statute of limitations can be tolled, which basically means it is paused. For example, the statute of limitations is tolled for any time period in which the defendant was under indictment for “the same conduct, same act, or same transaction.” Similarly, the statute of limitations can be tolled while the accused is absent from the state. Tolling commonly occurs when a defendant is on the run. Simply put, tolling means the clock stops running for a certain period of time.

 

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