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.

The 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

In 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.

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.

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.

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.

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.

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.

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.

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:

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

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.

A 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

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 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.

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.

The post Tarrant County Central Magistration appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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.

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.

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.

The post Collins v. Virgina Limits the Fourth Amendment Automobile Exception appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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:

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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