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Expunctions Texas

It goes without saying that any criminal arrest, charge or disposition, no matter how favorable, can adversely impact your future.  A criminal record may prevent you from getting into the college of your choice, applying for your dream job, or even closing a deal on a new house.  It is important to understand your options. Were you charged with a criminal offense that resulted in a dismissal, a completed pre-trial diversion program, a successfully disposed of deferred adjudication probation, or a reduction to a lesser offense?  If so, you may be eligible for an expunction or nondisclosure to ensure your criminal record is kept private. New laws passed in 2015 also entitle certain individuals who have been to jail or received probation.

Expunctions Versus Nondisclosures in Texas

An expunction order requires the destruction of all records of an offense, while a nondisclosure only prevents the Texas Department of Public Safety and other law enforcement agencies from releasing arrest and case information to anyone other than another law enforcement agency or certain specifically enumerated agencies.

If you are eligible for an expunction and follow all the proper procedures, an expunction must be granted in your case. However, if you are eligible for a nondisclosure and follow all the proper procedures, the judge has the discretion to grant or deny your petition for a nondisclosure.

How Long Does it Take to Get an Expunction or Nondisclosure Once You are Eligible?

Once a petition has been filed to have your record sealed or expunged, the court will address the petition. This may take anywhere from a couple of weeks to a couple of months. Occasionally, the judge will want to have a prove-up hearing which could further delay the process. Once an expunction or non-disclosure order is signed by a judge, you should expect for it to take four to six months before the records are completely sealed or expunged. Why the delay?  Texas DPS, the primary clearinghouse for criminal records, is at least four months behind in processing orders they receive. These orders must be processed by a number of private and public entities, which inevitably takes longer than you would expect.

Am I eligible for an Expunction in Texas?

In Texas, Chapter 55 of the Code of Criminal Procedure allows for expunctions of certain criminal offenses. Categories of offenses that may be eligible for expunction include:

  • Most felonies and misdemeanors that were dismissed outright;
  • Cases where an individual was found not guilty at trial;
  • Class C offenses that were dismissed after successful completion of deferred adjudication community supervision;
  • Most misdemeanor and felony offenses where a person was arrested but never charged, if a required waiting period has passed;
  • Convictions, including offenses where the individual did time or was on straight probation, if the offense has been pardoned; and
  • Cases where the prosecutor recommends the case is expunged.

What if You are Found ‘Not Guilty’ on One of Multiple Charges?

Generally, if a person is arrested on multiple charges and at least one of the charges result in a conviction, the conviction will prevent an expunction of the underlying arrest. An opinion issued by the Court of Appeals in Dallas serves as a reminder that there are exceptions to this general premise in certain circumstances.

In Texas v. T.S.N., the defendant was arrested for two offenses from two different dates at the same time. The first of the two offenses was a misdemeanor theft charge. The second of the two offenses was an aggravated assault with a deadly weapon charge. The defendant pled guilty to theft and was convicted. The defendant pled not guilty to the assault charge and was acquitted.

The defendant filed a motion to expunge the record of the assault after being found not guilty. The prosecutor opposed the motion for expunction because the defendant was convicted for at least one of the offenses for which she was arrested. The trial court ruled in favor of the expunction and the State appealed the decision to allow the expunction.

The State’s argument, and one that is commonly made by prosecutors, is that Article 55.01 (the expunction statute) is an arrest-based statute and that records concerning one charge cannot be expunged absent a showing that both charges are eligible for expunction.

While it is true that 55.01(c) does not allow for expunctions after acquittal of one charge when the person was convicted for, or remains subject to prosecution for, an offense arising out of the same criminal episode, there is no such restriction if the offenses did not take place in the same criminal episode.

The Court of Appeals in Dallas examined the expunction statute closely and determined that a person who is acquitted for an offense is entitled to an expunction even if he was arrested for another offense at the same time and that offense resulted in a conviction, as long as the offense for which he was convicted did not arise out of the same criminal episode.

This case highlights the need to contact an expunction attorney if you believe you may be eligible for an expunction of your records. Second, for practicing attorneys it is important to seek findings of “not guilty” from judges or juries for counts or charges that do not arise out of the same criminal episode. Third, for practicing criminal defense attorneys, this case is an important reminder to pursue what you believe to be a proper reading of a statute even when the prosecution seems to have an analogous argument that has carried the day in other cases.

Video: What’s the Difference Between an Expunction and Nondisclosure in Texas?

 

Expunctions and Nondisclosures in Texas

Can I Deny an Offense if it was Expunged in Texas?

Once an expunction order is final, an individual may deny the existence of the arrest and the expunction on applications, including for employment, school or the military. The person may even deny in a civil proceeding under oath the arrest and the existence of the expunction order. Only in a criminal proceeding must a person acknowledge the expunction order by stating the matter has been expunged.

What is a Nondisclosure in Texas?

Government Code Subchapter F allows for individuals who have successfully completed deferred adjudication community supervision for Class B misdemeanors, Class A misdemeanors, or felony offenses to have their records sealed through an Order of Nondisclosure.

Am I eligible for an Order of Nondisclosure in Texas?

You may be eligible for an order of nondisclosure if you received a dismissal of your case after deferred adjudication of a Class A or Class B misdemeanor or a non-exempt felony offense. You cannot receive a nondisclosure if you picked up a new criminal offense (other than a ticket) after you received deferred adjudication on the offense you wish to have nondisclosed. You cannot receive a nondisclosure if you have ever been convicted of an exempted offense.

Offenses Exempted from Receiving Orders of Nondisclosure In Texas

Can You Get a Nondisclosure after Straight Probation in Texas?

There are generally two kinds of Community Supervision in Texas. The first is “Straight Probation” and the second is “Deferred Adjudication.” The difference between Straight Probation and Deferred Adjudication is that there is a finding of guilt (in other words, a conviction) if you are placed on Straight Probation while there is no finding of guilt or a conviction if you are placed on Deferred Adjudication as successfully complete the terms of your Community Supervision.

Until recently, a person could not get a nondisclosure after Straight Probation in Texas, even if they successfully completed the terms of their Community Supervision. Under newly enacted Government Code Section 411.073, certain individuals who successfully completed misdemeanor Straight Probation for an offense that took place on or after September 1, 2015 may be able to get a nondisclosure of their criminal record – in other words, have their record sealed.

A nondisclosure in Texas is the legal mechanism used to seal a person’s criminal history so that no one other than law enforcement agencies or a state license agencies have access to the record. To obtain a nondisclosure, a Petition for Nondisclosure must be prepared and filed with the State. The State then has an opportunity to request a hearing. The court will determine if granting the nondisclosure is in the best interest of justice, and if so grant an order prohibiting the disclosure of the criminal record.

Requirements for Getting a Nondisclosure after Straight Probation:

  • The offense took place on or after September 1, 2015.
  • The offense was not a DWI or other intoxication-related offense or engaging in organized crime.
  • The defendant had not been convicted or placed on deferred adjudication for any offense other than a fine-only traffic violation after being sentenced on the misdemeanor for which the non-disclosure is being sought.
  • The defendant must have successfully completed probation.
  • The defendant cannot have been placed on convicted or placed on community supervision at any time for any offense other than a traffic offense that was punishable by a fine only.

Waiting Periods

There is a two-year waiting period for:

Can You Seal your Criminal Record after Going to Jail in Texas?

Nondisclosures of Misdemeanor Jail Sentences

A nondisclosure in Texas is the legal mechanism used to seal your criminal record after going to jail so that no one other than law enforcement agencies or a state license agencies have access to the record. Until recently, a person could not get a nondisclosure if they served a jail time. However, recent changes in Texas law now allow for nondisclosures of criminal records in some instances where the individual completed a jail sentence.

Government Code Section 411.0735 now allows for nondisclosures of certain misdemeanor offenses for individuals who served their jail sentences. Intoxication-related offenses and engaging in organized crime cases are not eligible for nondisclosures under this section.

In order to get a nondisclosure under Section 411.0735, the person must have served the sentence and never been convicted of or placed on deferred adjudication for any other offense besides a fine-only traffic offense. In order to obtain a nondisclosure, a Petition for Nondisclosure must be filed with the court. Furthermore, two years must have passed from the date of release from jail, and the offense must have occurred on or after September 1, 2015. The petitioner must be able to show that granting the Order of Nondisclosure would be in the best interest of justice.

Qualifications for a Nondisclosure after Jail Time

  • Offense date must be on or after September 1, 2015.
  • The offense must have been a misdemeanor.
  • The offense cannot have been an alcohol-related charge.
  • The offense cannot have been an engaging in organized crime charge.
  • Two years must have passed from the date of release from jail.
  • The person cannot have been previously convicted or placed on deferred adjudication for any offense other than a fine-only traffic offense.
  • The person cannot have been convicted or placed on deferred adjudication for any offense other than a fine-only traffic offense during the waiting period.
  • The person cannot have been convicted or placed on deferred adjudication at any time for:

In order to obtain a nondisclosure, a Petition for Nondisclosure is filed as  a civil proceeding. The State must be given notice of the petition at which time the State has 45 days to request a hearing. If a hearing is not requested, the court can grant the order without a hearing.

Can I Deny a Prior Offense if it was Nondisclosed in Texas?

Generally, if you have an offense that has been nondisclosed, you are no longer required to disclose it. However, there are agencies for which nondisclosure orders do not apply.

What Agencies have Access to a Nondisclosed Offense?

  • Law enforcement agencies
  • State Board of Educator Certification
  • School districts, charter schools, private schools, regional education service centers, commercial transportation companies, or education shared service arrangements;
  • Texas State Board of Medical Examiners
  • Texas School for the Blind and Visually Impaired;
  • Texas Board of Law Examiners;
  • State Bar of Texas;
  • District court regarding a petition for name change
  • Texas School for the Deaf;
  • Department of Family and Protective Services;
  • Texas Youth Commission;
  • Department of Assistive and Rehabilitative Services;
  • Department of State Health Services, a local mental health service, a local mental retardation authority, or a community center providing services to persons with mental illness or retardation;
  • Texas Private Security Board;
  • Municipal or volunteer fire department;
  • Board of Nurse Examiners;
  • Safehouse providing shelter to children in harmful situations
  • Public or nonprofit hospital or hospital district;
  • Texas Juvenile Probation Commission;
  • Securities commissioner, the banking commissioner, the savings and loan commissioner, or the credit union commissioner;
  • Texas State Board of Public Accountancy;
  • Texas Department of Licensing and Regulation;
  • Health and Human Services Commission; and
  • Department of Aging and Disability Services.

Waiting Periods for Filing Petitions of Nondisclosure

Was My Class C Offense Deferred or Was it a Conviction?

If the fine you paid was categorized as a fine, then it was a conviction. If it was categorized as a “special assessment,” then you received deferred adjudication. If you were charged in Texas and are interested in finding out if a Class C offense you paid for can be expunged, contact Varghese Summersett PLLC.

In Tarrant County, and in many other counties across the state, cases are sometimes reduced to Class C offenses. For example, let’s say you were arrested for Theft $50-500 but your case was ultimately disposed of as a Class C Theft under $50, after you paid a special assessment and you successfully completed your deferred term. Once you are done, your case is dismissed. However, a background check will still show that you were arrested for Theft $50-500. An expunction would remove the arrest from your record completely.

Can I Get a Record of a DWI Sealed?

If Texas, if you pled guilty or “no contest” to a DWI charge, the law only allows for two forms of punishment: jail time or straight probation.  A recent change in law allows for the nondisclosure of first-time DWIs.

DWI Expunctions in Texas

As of September 1, 2017, Texas law allows for the retroactive nondisclosure, but not expunction, of first-time DWI cases.

My Case was Dismissed. Do I have a Criminal Record?

A common myth is that once your case is dismissed, it is no longer on your record. A criminal background check will still show your arrest. These records may affect a person’s ability to get a job, secure loans, or find a place to live. Arrests and dispositions get reported to the Texas Department of Public Safety. The information is then disseminated to third-party data services like publicdata.com. If your case has been dismissed for any reason, contact Varghese Summersett PLLC to see if your criminal record can be sealed.

I Received Deferred Adjudication. Do I have a criminal record?

Even if you successfully complete deferred adjudication community supervision and your case was dismissed (referred to as a DM13), it will still appear on your criminal record.  It is important that the court enter a finding of “Not Guilty” on the greater charge.  Then, you will need to call Varghese Summersett PLLC, about a non-disclosure order for arrest and disposition of the lesser charge.

Can I Get an Expunction if I Have signed a Waiver of Expunction?

Individuals sometimes sign waivers of expunctions at the time of the plea. If you have signed a waiver of expunction, the road to getting an expunction becomes much more difficult. Still, there are often avenues for expunctions to be granted. It is important that you call an expunction attorney who is familiar with the expunction laws in Texas and the procedures for filing an expunction even in cases where a waiver of expunction was signed. Varghese Summersett PLLC provides expunctions for clients in Tarrant County, Dallas County, Denton County, Collin County, and Johnson County. Call 817-203-2220 today for a complimentary strategy session. You can also contact us online.

The post Expunctions Texas | Nondisclosure | Sealing Criminal Records (2018) appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

Expunctions Texas

It goes without saying that any criminal arrest, charge or disposition, no matter how favorable, can adversely impact your future.  A criminal record may prevent you from getting into the college of your choice, applying for your dream job, or even closing a deal on a new house.  It is important to understand your options. Were you charged with a criminal offense that resulted in a dismissal, a completed pre-trial diversion program, a successfully disposed of deferred adjudication probation, or a reduction to a lesser offense?  If so, you may be eligible for an expunction or nondisclosure to ensure your criminal record is kept private. New laws passed in 2015 also entitle certain individuals who have been to jail or received probation.

Expunctions vs. Nondisclosures in Texas

An expunction order requires the destruction of all records of an offense, while a nondisclosure only prevents the Texas Department of Public Safety and other law enforcement agencies from releasing arrest and case information to anyone other than another law enforcement agency or certain specifically enumerated agencies.

If you are eligible for an expunction and follow all the proper procedures, an expunction must be granted in your case. However, if you are eligible for a nondisclosure and follow all the proper procedures, the judge has the discretion to grant or deny your petition for a nondisclosure.

How Long Does it Take to Get an Expunction or Nondisclosure Once You are Eligible?

Once a petition has been filed to have your record sealed or expunged, the court will address the petition. This may take anywhere from a couple of weeks to a couple of months. Occasionally, the judge will want to have a prove-up hearing which could further delay the process. Once an expunction or non-disclosure order is signed by a judge, you should expect for it to take four to six months before the records are completely sealed or expunged. Why the delay?  Texas DPS, the primary clearinghouse for criminal records, is at least four months behind in processing orders. These orders must also be processed by a number of private and public entities, which inevitably takes longer than you would expect.

Am I Eligible for an Expunction in Texas?

In Texas, Chapter 55 of the Code of Criminal Procedure allows for expunctions of certain criminal offenses. Categories of offenses that may be eligible for expunction include:

  • Most felonies and misdemeanors that were dismissed outright;
  • Cases where an individual was found not guilty at trial;
  • Class C offenses that were dismissed after successful completion of deferred adjudication community supervision;
  • Most misdemeanor and felony offenses where a person was arrested but never charged, if a required waiting period has passed;
  • Convictions, including offenses where the individual did time or was on straight probation, if the offense has been pardoned; and
  • Cases where the prosecutor recommends the case is expunged.

What if You are Found ‘Not Guilty’ on One of Multiple Charges?

Generally, if a person is arrested on multiple charges and at least one of the charges result in a conviction, the conviction will prevent an expunction of the underlying arrest. An opinion issued by the Court of Appeals in Dallas serves as a reminder that there are exceptions to this general premise in certain circumstances.

In Texas v. T.S.N., the defendant was arrested for two offenses from two different dates at the same time. The first of the two offenses was a misdemeanor theft charge. The second of the two offenses was an aggravated assault with a deadly weapon charge. The defendant pled guilty to theft and was convicted. The defendant pled not guilty to the assault charge and was acquitted.

The defendant filed a motion to expunge the record of the assault after being found not guilty. The prosecutor opposed the motion for expunction because the defendant was convicted for at least one of the offenses for which she was arrested. The trial court ruled in favor of the expunction and the State appealed the decision to allow the expunction.

The State’s argument, and one that is commonly made by prosecutors, is that Article 55.01 (the expunction statute) is an arrest-based statute and that records concerning one charge cannot be expunged absent a showing that both charges are eligible for expunction.

While it is true that 55.01(c) does not allow for expunctions after acquittal of one charge when the person was convicted for, or remains subject to prosecution for, an offense arising out of the same criminal episode, there is no such restriction if the offenses did not take place in the same criminal episode.

The Court of Appeals in Dallas examined the expunction statute closely and determined that a person who is acquitted for an offense is entitled to an expunction even if he was arrested for another offense at the same time and that offense resulted in a conviction, as long as the offense for which he was convicted did not arise out of the same criminal episode.

This case highlights the need to contact an expunction attorney if you believe you may be eligible for an expunction of your records. Second, for practicing attorneys it is important to seek findings of “not guilty” from judges or juries for counts or charges that do not arise out of the same criminal episode. Third, for practicing criminal defense attorneys, this case is an important reminder to pursue what you believe to be a proper reading of a statute even when the prosecution seems to have an analogous argument that has carried the day in other cases.

Video: What’s the Difference Between an Expunction and Nondisclosure in Texas?

 

Can I Deny an Offense if it was Expunged in Texas?

Once an expunction order is final, an individual may deny the existence of the arrest and the expunction on applications, including for employment, school or the military. The person may even deny in a civil proceeding under oath the arrest and the existence of the expunction order. Only in a criminal proceeding must a person acknowledge the expunction order by stating the matter has been expunged.

What is a Nondisclosure in Texas?

Government Code Subchapter F allows for individuals who have successfully completed deferred adjudication community supervision for Class B misdemeanors, Class A misdemeanors, or felony offenses to have their records sealed through an Order of Nondisclosure.

Am I eligible for an Order of Nondisclosure in Texas?

You may be eligible for an order of nondisclosure if you received a dismissal of your case after deferred adjudication of a Class A or Class B misdemeanor or a non-exempt felony offense. You cannot receive a nondisclosure if you picked up a new criminal offense (other than a ticket) after you received deferred adjudication on the offense you wish to have nondisclosed. You cannot receive a nondisclosure if you have ever been convicted of an exempted offense.

What Offenses are Exempted from Receiving Orders of Nondisclosure in Texas?

Can You Get a Nondisclosure after Straight Probation in Texas?

There are generally two kinds of Community Supervision in Texas. The first is “Straight Probation” and the second is “Deferred Adjudication.” The difference between Straight Probation and Deferred Adjudication is that there is a finding of guilt (in other words, a conviction) if you are placed on Straight Probation. There is no finding of guilt or a conviction if you are placed on Deferred Adjudication and successfully complete the terms of your community supervision.

Until recently, a person could not get a nondisclosure after Straight Probation in Texas, even if they successfully completed the terms of their Community Supervision. Under newly enacted Government Code Section 411.073, certain individuals who successfully completed misdemeanor Straight Probation for an offense that took place on or after September 1, 2015 may be able to get a nondisclosure of their criminal record – in other words, have their record sealed.

A nondisclosure in Texas is the legal mechanism used to seal a person’s criminal history so that no one other than law enforcement agencies or a state license agencies have access to the record. To obtain a nondisclosure, a petition for nondisclosure must be prepared and filed with the state. The state then has an opportunity to request a hearing. The court will determine if granting the nondisclosure is in the best interest of justice, and if so grant an order prohibiting the disclosure of the criminal record.

What are the Requirements for Getting a Nondisclosure after Straight Probation?

  • The offense took place on or after September 1, 2015.
  • The offense was not a DWI or other intoxication-related offense or engaging in organized crime.
  • The defendant had not been convicted or placed on deferred adjudication for any offense other than a fine-only traffic violation after being sentenced on the misdemeanor for which the non-disclosure is being sought.
  • The defendant must have successfully completed probation.
  • The defendant cannot have been placed on convicted or placed on community supervision at any time for any offense other than a traffic offense that was punishable by a fine only.

What are the Waiting Periods?

There is a two-year waiting period for:

Can You Seal your Criminal Record after Going to Jail in Texas?

Can You Get a Nondisclosures of Misdemeanor Jail Sentences?

A nondisclosure in Texas is the legal mechanism used to seal your criminal record after going to jail so that no one other than law enforcement agencies or a state license agencies have access to the record. Until recently, a person could not get a nondisclosure if they served a jail time. However, recent changes in Texas law now allow for nondisclosures of criminal records in some instances where the individual completed a jail sentence.

Government Code Section 411.0735 now allows for nondisclosures of certain misdemeanor offenses for individuals who served their jail sentences. Intoxication-related offenses and engaging in organized crime cases are not eligible for nondisclosures under this section.

In order to get a nondisclosure under Section 411.0735, the person must have served the sentence and never been convicted of or placed on deferred adjudication for any other offense besides a fine-only traffic offense. In order to obtain a nondisclosure, a Petition for Nondisclosure must be filed with the court. Furthermore, two years must have passed from the date of release from jail, and the offense must have occurred on or after September 1, 2015. The petitioner must be able to show that granting the Order of Nondisclosure would be in the best interest of justice.

Qualifications for a Nondisclosure after Jail Time:

  • Offense date must be on or after September 1, 2015.
  • The offense must have been a misdemeanor.
  • The offense cannot have been an alcohol-related charge.
  • The offense cannot have been an engaging in organized crime charge.
  • Two years must have passed from the date of release from jail.
  • The person cannot have been previously convicted or placed on deferred adjudication for any offense other than a fine-only traffic offense.
  • The person cannot have been convicted or placed on deferred adjudication for any offense other than a fine-only traffic offense during the waiting period.
  • The person cannot have been convicted or placed on deferred adjudication at any time for:

In order to obtain a nondisclosure, a Petition for Nondisclosure is filed as  a civil proceeding. The State must be given notice of the petition at which time the State has 45 days to request a hearing. If a hearing is not requested, the court can grant the order without a hearing.

Can I Deny a Prior Offense if it was Nondisclosed in Texas?

Generally, if you have an offense that has been nondisclosed, you are no longer required to disclose it. However, there are agencies for which nondisclosure orders do not apply.

What Agencies have Access to a Nondisclosed Offense?

  • Law enforcement agencies
  • State Board of Educator Certification
  • School districts, charter schools, private schools, regional education service centers, commercial transportation companies, or education shared service arrangements;
  • Texas State Board of Medical Examiners
  • Texas School for the Blind and Visually Impaired;
  • Texas Board of Law Examiners;
  • State Bar of Texas;
  • District court regarding a petition for name change
  • Texas School for the Deaf;
  • Department of Family and Protective Services;
  • Texas Youth Commission;
  • Department of Assistive and Rehabilitative Services;
  • Department of State Health Services, a local mental health service, a local mental retardation authority, or a community center providing services to persons with mental illness or retardation;
  • Texas Private Security Board;
  • Municipal or volunteer fire department;
  • Board of Nurse Examiners;
  • Safehouse providing shelter to children in harmful situations
  • Public or nonprofit hospital or hospital district;
  • Texas Juvenile Probation Commission;
  • Securities commissioner, the banking commissioner, the savings and loan commissioner, or the credit union commissioner;
  • Texas State Board of Public Accountancy;
  • Texas Department of Licensing and Regulation;
  • Health and Human Services Commission; and
  • Department of Aging and Disability Services.

What are the Waiting Periods for Filing Petitions of Nondisclosure?

Was My Class C Offense Deferred or Was it a Conviction?

If the fine you paid was categorized as a fine, then it was a conviction. If it was categorized as a “special assessment,” then you received deferred adjudication. If you were charged in Texas and are interested in finding out if a Class C offense you paid for can be expunged, contact Varghese Summersett PLLC.

In Tarrant County, and in many other counties across the state, cases are sometimes reduced to Class C offenses. For example, let’s say you were arrested for Theft $50-500 but your case was ultimately disposed of as a Class C Theft under $50, after you paid a special assessment and you successfully completed your deferred term. Once you are done, your case is dismissed. However, a background check will still show that you were arrested for Theft $50-500. An expunction would remove the arrest from your record completely.

Can I Get a Record of a DWI Sealed?

If Texas, if you pled guilty or “no contest” to a DWI charge, the law only allows for two forms of punishment: jail time or straight probation.  A recent change in law allows for the nondisclosure of first-time DWIs.

Can you get DWI Expunctions in Texas?

As of September 1, 2017, Texas law allows for the retroactive nondisclosure, but not expunction, of first-time DWI cases.

My Case was Dismissed. Do I have a Criminal Record?

A common myth is that once your case is dismissed, it is no longer on your record. A criminal background check will still show your arrest. These records may affect a person’s ability to get a job, secure loans, or find a place to live. Arrests and dispositions get reported to the Texas Department of Public Safety. The information is then disseminated to third-party data services like publicdata.com. If your case has been dismissed for any reason, contact Varghese Summersett PLLC to see if your criminal record can be sealed.

I Received Deferred Adjudication. Do I have a Criminal Record?

Even if you successfully complete deferred adjudication community supervision and your case was dismissed (referred to as a DM13), it will still appear on your criminal record.  It is important that the court enter a finding of “Not Guilty” on the greater charge.  Then, you will need to call Varghese Summersett PLLC, about a non-disclosure order for arrest and disposition of the lesser charge.

Can I Get an Expunction if I have signed a Waiver of Expunction?

Individuals sometimes sign waivers of expunctions at the time of the plea. If you have signed a waiver of expunction, the road to getting an expunction becomes much more difficult. Still, there are often avenues for expunctions to be granted. It is important that you call an expunction attorney who is familiar with the expunction laws in Texas and the procedures for filing an expunction even in cases where a waiver of expunction was signed.

Contact Us

Varghese Summersett PLLC provides expunctions and nondisclosures for clients in Tarrant County, Dallas County, Denton County, Collin County, and Johnson County. Call 817-203-2220 today for a complimentary strategy session. You can also contact us online.

The post Expunctions Texas | Nondisclosures | Sealing Criminal Records (2018) appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

The Court of Criminal Appeals handed down a decision this week that revisits the significance of furtive gestures in establishing probable cause. In Marcopoulos v. State, the Court ruled that quickly leaving a bar that was known drug establishment coupled with furtive movements once the officer initiated a traffic stop was not sufficient to establish probable cause to search the vehicle.

The Background

While surveilling a bar that was well-known narcotics spot, an undercover officer witnessed Andreas Marcopoulos enter the bar for less than five minutes and leave. Finding this suspicious, the undercover officer followed him and radioed for uniformed officers to follow Marcopoulos.

Officers observed Marcopoulos make “furtive gestures” around the center console of the vehicle and the uniformed officer initiated a traffic stop after Marcopoulos failed to signal a lane change. Marcopoulos was arrested for the traffic violation. His vehicle was searched based on probable cause stemming from the officers’ observations. Two baggies of cocaine were found near the center console. Officers found a third cocaine “baggie” in Marcopoulos’ wallet.

Automobile Exception to Search Warrants

Officers may search a vehicle based on the “automobile exception,” which in relevant part, provides that an officer needs probable cause to believe a vehicle contains contraband to conduct a warrantless stop. “Probable cause” is met when there is a “fair probability” of finding contraband or evidence during a search. In determining whether the probability is fair, courts consider factual and practical considerations of everyday life and take into account the totality of all surrounding circumstances.

Challenging the Search of the Vehicle

Marcopoulos filed a motion to suppress the baggies as evidence arguing they were derived from an improper search. The trial court denied the motion and Marcopoulos appealed. The intermediate appellate court upheld the search under the “automobile exception” to the Fourth Amendment warrant requirement, reasoning that Marcopoulos’ “repeated history of going to a place . . . known for selling narcotics, his uncommonly short time spent at a bar, and his furtive gestures when he noticed a patrol car behind him” were sufficient to create probable cause to search the vehicle.

Court of Criminal Appeals on Furtive Gestures

On December 20, 2017, the Texas Court of Criminal Appeals found the combination of Marcopoulos’ “furtive gestures” paired with his short amount of time spent at a bar known for narcotics activity, was not sufficient to create probable cause to search the vehicle. The Court held “furtive gestures” must be coupled with “suspicious circumstances” that link directly to criminal activity in order to establish probable cause. Neither officer witnessed Marcopoulos engage in a drug deal, possess drugs or paraphernalia, or pursue the purchase of drugs while visiting the bar. Additionally, neither officer could link Marcopoulos’ “furtive gestures” to drugs or paraphernalia before conducting the search. No baggies were seen until the search was conducted and neither officer noted additional indicators or evidence that would directly link Marcopoulos’ movements to drug possession. Further, his furtive gestures were not a response to being pulled over, but merely a response to police presence. Therefore, Marcopoulos’ furtive gestures could not be directly and linked to drug possession before officers conducted a search, and any evidence obtained from the improper search should have been suppressed by the trial court.

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Benson Varghese

Benson Varghese, founder and managing partner of the law firm Varghese Summersett PLLC, has been named a 2017 Minority Leader in Business by the Fort Worth Business Press.

Varghese was recognized along with other North Texas business leaders on Dec. 14, during a luncheon at the Fort Worth Club.

“I am honored to have been recognized as a top business leader by the Fort Worth Business Press,” Varghese said.   “The award recognizes that diverse backgrounds can enhance the strength of, and innovation within, our business community.”

A former prosecutor, Varghese started his criminal defense firm three years ago with two attorneys in a small office. Today, his firm is the largest criminal defense firm in Tarrant County. The firm’s 10 attorneys and support staff take up half of the 16th floor in the One City Place building in downtown Fort Worth.

“Benson built his business on the principles of hard work, dedication, education and integrity,” said firm partner Christy Jack. “His word is his bond. At age 35, he truly embodies the entrepreneurial spirit.”

A native of India, Varghese came to the United States when he was a year old after his mother accepted a job as a nurse in Dallas. He later returned to India as a young teen to manage the family’s rubber plantation, a difficult life that taught him the value of hard work and perseverance. Once he turned 18, he sought citizenship in the United States to return to his immediate family, pursue higher education, and live the “American Dream.” 

After becoming a naturalized citizen and returning to the U.S., Varghese pursued and obtained his GED.  He went on to graduate from Southern Methodist University and then attended law school at Texas Tech University to fulfill his goal of becoming an attorney. Upon graduation, he went to work for the Tarrant County District Attorney’s Office, where he served as a prosecutor for four years.

In March 2014, at the age of 32, Varghese left his job as a prosecutor to launch his own criminal defense firm and acquired an all-star team of attorneys. To date, Varghese Summersett PLLC has helped more than 1000 clients, has an A+ business rating with the Better Business Bureau and has 130 five-star reviews on Google – more stellar reviews than any other criminal defense firm in Texas.

Varghese is a Fellow of the Texas Bar Foundation – only one-third of 1 percent of Texas lawyers are selected each year – and a member of the College of the State Bar of Texas, a distinction held by fewer than 10 percent of all licensed attorneys in Texas. He also was recently elected Vice President of the Tarrant County Criminal Defense Lawyers Association, among many other notable accomplishments.

“We all benefit when every person, regardless of race, ethnicity, background, or socioeconomic status, is given the opportunity to pursue their dreams,” said firm partner, Anna Summersett. “Benson has done just that, ambitiously.  The lessons he learned from his parents, his culture, and other minority members along the way make him a well-rounded, intelligent leader for our diverse firm.”


Learn more about Benson Varghese on the firm’s website, www.versustexas.com.

Varghese Summersett

It’s no surprise that certain crimes spike around the holidays. Increased alcohol consumption, as well as financial and emotional stress, sometimes cause people to do things they wouldn’t ordinarily do. Like drink too much and then drive, or get into a fight with a loved one, or shoplift. Unfortunately, a poor decision now can have an impact long after the holidays are over. Here’s a look at five common holiday crimes that can turn Christmas cheer into holiday tears.

Driving While Intoxicated

jail aint jolly holiday dwi

During the holiday season, there is no shortage of celebrations and parties where libations flow freely. Police often step up DWI enforcement during this time of year, putting more officers on the roads and implementing No-Refusal programs. To be sure, police will be looking for any reason to stop motorists, like having a taillight out or failing to use a turn signal.

A DWI arrest or DUI can ruin an otherwise festive evening. It’s important to make a plan to get home safely before the festivities start. Lining up a DD, calling a cab, renting a hotel room, or contacting Uber, Lyft or SoberRides.org are all good options for those who plan to imbibe outside their home over the holidays. If you do get pulled over and have been drinking, remember your rights – including your right to remain silent and your right to refuse sobriety tests.

Shoplifting

theftWhen people can’t afford to buy their loved ones’ gifts or provide a special holiday meal, they sometimes resort to shoplifting. They may rationalize their actions by thinking taking a doll for Little Susie for Christmas is much different than, say, stealing a shirt for a party. Of course, there are also people who shoplift to fill some sort of emotional void or for the thrill of it. Regardless of the reason, it’s important to remember that retailers hire extra staff or security guards over the holiday season, which increases the shoplifter’s chance of getting caught. According to consumerist.com, the items people shoplift the most over the holidays include:

  • Electronic accessories (like cellphone cases)
  • Leather clothing
  • Electronics
  • Accessories
  • Winter clothing
  • Meat and seafood
  • Alcohol
  • Perfume and cologne
  • Children’s Toys
  • Gourmet Chocolate

If you are contemplating shoplifting, it’s important to keep in mind that you won’t be able to provide for or help your loved ones at all if you’re locked up. If you are struggling to provide for your family or friends over the holidays, there are a number of organizations that can help, such as the Salvation Army, the Goodfellow Fund and Toys For Tots.

Family Violence

911 call assaultFamily gatherings can bring out the best in people, but they also may bring out bad memories or experiences that could lead to heated arguments and physical altercations between loved ones. Money problems and alcohol often exacerbate the situation. It is not uncommon for people to be arrested for getting into a physical confrontation with a family member over the holidays, such a child, spouse, or in-law. Oftentimes, when cooler heads prevail the next day, the alleged victim wants the charges dropped, but it’s not that easy. In fact, many prosecutor’s offices have a “no drop” police when it comes to cases alleging assault family violence.

It’s important to understand that allegations of family violence are incredibly serious even at the lowest levels, which can range from a Class C ticket all the way up to a first-degree felony. Try and keep stress in check during the holidays and avoiding “snapping” at others. Think before you speak or walk away if you feel your anger rising. Refrain or cut back on drinking.

Package Theft

Package TheftYou can’t turn on the news during the holidays without hearing of another incident of package theft. This seems to have become the crime du jour over the holidays. Swiping packages off porches or doorsteps is a crime of opportunity, but it can carry serious penalties – both at the state and federal level. For example, mail theft — taking a letter, a package delivered by mail carrier, or a package left in a designated area — could lead to a fine and confinement for up to five years in federal prison. These days, more porch pirates are getting caught and arrested due to the implementation of surveillance cameras and bait packages with GPS trackers.

Packages sitting on a door steps can be tempting, but think about the consequences of getting caught stealing. Spending the holidays in handcuffs is not fun, plus the amount you will likely pay to bond out of jail and hire an attorney to defend you is probably a lot more than the unknown contents of a box.

Burglary

burglaryHome and car burglaries typically increase during the holidays. Shopping bags or gifts left in vehicles can be tempting for an opportunistic thief. Likewise, a beautifully decorated tree in front of a window with presents all around attracts more than just children. Burglaries this time of year are often of the smash-and-grab variety. Burglary charges can be very serious – no matter what time of year – leading to steep fines and possible jail time. Not to mention, homeowners have the right to protect their property, including using deadly force. Many burglars have found out the hard way that the risk did not outweigh the reward.

Contact Us

If you or a loved one is arrested over the holiday season, contact an experienced lawyer as soon as possible. Our team of Fort Worth criminal defense attorneys have decades of experience and a proven track record of success. We can help you navigate this difficult time. Call today 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.

Call: (817) 203-2220

You can also contact us online:

The post Five Common Holiday Crimes to Watch Out For appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

It seems as though every time you turn on the news, there is another incident of aggressive driving or so-called “road rage” in North Texas. According to AAA, 9 out of 10 drivers report that aggressive driving is a threat to their personal safety. Additionally, 8 million drivers have reported getting out of their car to confront another driver or bumped another car on purpose. While there is no law in Texas that uses the term “road rage,” many of the acts associated with road rage can result in criminal charges.

What is Road Rage?

Road Rage was a term originally coined by the media in L.A. in the 1990’s due to a string of shootings that occurred on their highways. Road rage is part of the spectrum that is aggressive driving. Aggressive driving is defined by the National Highway Safety Traffic Administration (NHSTA) as “the operation of a motor vehicle in a manner that is likely to endanger persons or property.” Road rage often stems from the emotional distress aggressive driving causes, and results in behavior that is dangerous to yourself and others on the road.

How is Road Rage Prosecuted?

As mentioned, there is no specific offense that mentions “road rage” in Texas. However, some charges that can stem from road rage include reckless driving, criminal mischief, aggravated assault, discharging a firearm, deadly conduct and, even murder. As with most incidents, charges and punishment ranges are dependent on the severity of the action and incident. Reckless driving, for example, is a misdemeanor, while murder would be a first-degree felony punishable by up to life in prison.

Examples of Road Rage Prosecutions in Texas

Texas is rife with road rage incidents, and they come in many forms. Here are some examples of some recent Texas road rage incidents and their outcomes.

  • In July of this year, a 22-year-old man was found guilty of murder and sentenced to 50 years in prison due to a road rage incident that occurred in the summer of 2016. The man, Aspen Warren, shot a woman through her car door, killing her. Warren said he intended to scare the young woman, and that “you can’t road rage somebody and expect them not to road rage you back, ” according to a story on NBC5.
  • In August of this year, Arlington police arrested a man for allegedly firing five rounds from a handgun into the air, in response to another driver honking their horn in an attempt to avoid a collision. The man faces charges of deadly conduct and unlawful possession of a firearm by a felon.
  • Recently, on November 7, Texas Christian University was put on lockdown due to an alleged road rage incident between two Roadrunner shuttle bus drivers on campus. Officials said two campus shuttle drivers allegedly got into an argument; one fired a gun at the other, missed, and then rammed one shuttle bus into the other shuttle bus. Fort Worth police arrested one of the drivers in the incident, and charged him with felony aggravated assault with a deadly weapon, and bringing a gun on campus. (TCU is not an open carry campus.) That charge was later changed to murder, however, after the victim died a few weeks later from injuries sustained in the crash. 

What Can You Do to Avoid Road Rage?

Practicing safe driving habits is the key to avoiding incidents of road rage. This includes not driving when you are tired or distracted, not using obscene hand gestures, and leaving enough space between you and other drivers. Try to be wary of others behavior and avoid aggressive drivers. Aggressive behaviors are often a result of your attitude and emotional state. Put on relaxing music, practice patience, remember that you are sharing the road and try to put yourself in other driver’s shoes. Remember the Golden Rule and treat others how you would like to be treated.

How Can You Avoid Being the Victim of Road Rage?

If you find yourself on the receiving end of road rage, do not retaliate. Get out of their way, give them space to pass you or take an alternate route to your destination. Call the police if you believe you are in immediate danger, or if the driver is a danger to all the cars around you. It is best to not engage and be the bigger person, and ensure that you and your passengers reach your destination safely.

Contact Us

If you or a loved one is facing charges stemming from a Texas road rage incident, you need a skilled attorney by your side. Our team of former prosecutors and Board Certified Criminal Law Specialists are here to help.

Call 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.

Call: (817) 203-2220

You can also contact us online:

The post Road Rage Prosecution and Defense | How is Road Rage Prosecuted? appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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Possession of marijuana, in any form, is still illegal in Texas. The “cite and release” legislation that was passed in 2007 does not eliminate the possibility of jail time as punishment. It merely gives officers the ability to cite a person — or give them a summons to appear in court at a later date — to resolve the charge against them.

Even though the cite and release law has been on the books for a decade, few Texas cities and counties have actually implemented cite and release programs — but the list is growing.

On Friday, Dallas officials will begin a cite and release program, encouraging officers to cite and release, rather than arrest, people in possession of less than four ounces of marijuana in most circumstances. Houston, Austin and San Antonio are among large cities with similar programs in place.

Cite and Release for Misdemeanor Marijuana Charges

smoking weed
Smoking weed can still land you in jail in Texas

Cite and release does not decriminalize marijuana possession. Individuals who receive a summons and are released at the scene for a marijuana charge could still end up behind bars. If convicted, the punishment range for any usable amount of marijuana begins at a Class B misdemeanor and goes up to a first-degree felony, based on the amount of marijuana the police find. This means for even the lowest level marijuana charge, jail time is still a possibility.

There are no “fine-only” or ticketable offenses for having a usable amount of marijuana, although possession of drug paraphernalia is a Class C misdemeanor.

Cite and Release in Texas

Citing and releasing individuals accused of certain misdemeanors, including marijuana possession, has been an option since September 1, 2007, when the Texas Code of Criminal Procedure Article 14.06 (c) allowed officers to use cite and release for individuals who:

1. lived in the county where the offense occurred
2. and is charged with:

  • Possession of Marijuana under 2 Ounces (Class B)
  • Possession of Marijuana between 2 and 4 Ounces (Class A)
  • Possession of a Substance in Penalty Group 2-A under Two Ounces (Class B)
  • Possession of a Substance in Penalty Group 2-A Two to Four Ounces (Class A)
  • Criminal Mischief $100-750 (Class B)
  • Graffiti $100-750 (Class B)
  • Graffiti $750-2500 (Class A)
  • Theft $100-750 (Class B)
  • Theft $750-2500 (Class A)
  • Theft of Services $100-750 (Class B)
  • Theft of Services $750-2500 (Class A)
  • Contraband in a Correctional Facility by an Employee or Volunteer
  • Driving While License Invalid

Although the legislature has authorized cite and release for all the offenses listed above for a decade, individuals accused of these offenses continue to be arrested in most counties throughout the state. Individuals do not have a right to be cited and released – instead, the officer has the discretion to cite and release them. Additionally, even counties that have adopted cite and release policies largely focus on cite and release for misdemeanor amounts of marijuana.

Counties across Texas are beginning to weigh the costs of the initial arrest for certain misdemeanor offenses

Fiscally conservative counties, through the leadership of their elected district attorneys, cooperation of local law enforcement, and approval of county commissioners, have been embracing cite and release to better use the financial resources that are spent on booking, housing, and arraigning individuals charged with these offenses before the cases ever get to court. By taking advantage of this law, cities use their resources to house individuals charged with more serious crimes.

Again, cite and release does not reduce the possible sentence for any offense, including jail time. Cite and release is not available for any felony offense or for any violent offense. Possession of marijuana under two ounces is still punishable by up to 180 days in jail and up to a $2,000 fine. Possession of marijuana between two and four ounces is still punishable by up to one year in jail and a $4,000 fine.

This week, Dallas County joins the small, but growing, list of counties in Texas that have implemented cite and release policies. Other counties include Harris County, Travis County, and Bexar County. It will be interesting to see if cite and release continues to gain momentum in Texas.

Contact us

Call us at (817) 203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. 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 What is Cite and Release? Cite and Release in Texas appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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Swiping packages off porches or doorsteps is a common crime of opportunity, especially during the holidays. An article published recently by USA Today reports that one in two Americans know someone who has had a package stolen after it was delivered and one in three Americans say they have had a package stolen. For some, the lure of unattended Christmas loot is just too great.These so-called “porch pirates” won’t just end up on Santa’s naughty list, however. This type of behavior could land them in jail facing serious consequences.

State and Federal Criminal Charges for Stealing Packages

In Texas, depending on the circumstances, it’s possible to face state or federal charges for package theft.

Package Thefts under Texas Law

package theftUnder state late law, specifically Texas Penal Code 31.03, if you take property that does not belong to you, without consent or permission of the owner and without other legal justification, and have no intention of giving it back, it constitutes theft. Taking a package off a stranger’s doorstep without permission would qualify as theft under this statute. Learn more about theft charges in Texas.

In Texas, punishment for theft can range from a ticket to up to life in prison. Theft is classified by the amount of property that is stolen. If the property is valued at under $100, the individual is facing a $500 fine. If the property is valued at more than $300,000, the individual is facing a first-degree felony punishable by up to life in prison.

Because individuals who commit package theft likely do not know what is inside the box, they are unwittingly exposing themselves to the full gamut of punishment. For example, stealing a smaller package that contained jewelry or expensive electronics could lead to felony theft charges. Likewise, stealing a large box containing an inexpensive item could lead to a misdemeanor charge.

Package Thefts under Federal Law

usps theftA person who commits package theft could also be guilty of a federal crime. Under Section 1708 of the United States Code, mail theft is defined as taking any piece of mail that is not your own for any reason. This could include a letter, a package delivered by a mail carrier, or a package that is left in a designated delivery area. Following a USPS truck and then taking packages off someone’s porch after delivery, for example, or taking a package out of a stranger’s mailbox without permission could be a violation of federal law. A conviction could lead to a fine and confinement for up to five years in federal prison.

Tips for Avoiding Package Thefts

Install a Surveillance Camera

security cameras

Because package theft is a growing issue, law enforcement and homeowners have become more vigilant, which has resulted in more people getting caught and arrested. Many people who commit package theft are captured by home surveillance cameras. Some police departments are now turning to technology for help and using bait packages with GPS trackers inside to find and arrest package thieves. Homeowners also are relying on package guard products that notify them when they receive a package and sets off an alarm if anyone unauthorized tries to take it.

Have Packages Delivered to another Location

Besides post office boxes or work addresses, you can also have packages delivered to an Amazon Locker.  You can also have packages delivered to a UPS store.

Require a Signature for Delivery

If you have a package that you don’t want left on your front porch, contact the seller or shipper and require a signature for delivery.

What should you do if your package is stolen?

Contact the Seller or Shipper

Contact the Carrier

  • Even if the shipper did not purchase insurance, most private carriers offer $100 of free coverage for ground and express services.

Contact the Police

  • If you have proof that a package was stolen, contact the police at their non-emergency number. Be sure to retain any footage you may have from a surveillance camera. If you don’t have a surveillance camera, ask your neighbors if they have any cameras that might have captured traffic on the street.

Charged with Package Theft? Contact Us

Have you been accused of stealing a package in state or federal court? Whether you were wrongly accused or you made mistake and are hoping you can live a better life in the future, we are here to help. Call us at (817) 203-2220. You can also contact us online:

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Illegal Reentry Charges: When Coming Back is a Federal Crime

The debate regarding the scope of legal immigration to the United States has existed for decades. It is a political hotbed. Arguments for and against expanding or retracting immigration seem to permeate the political landscape of this country. While the public discourse ebbs and flows, federal courts have adjudicated a myriad of criminal cases where people have been shown to re-enter the U.S. after being deported and face illegal reentry charges.

While it is common knowledge that persons who enter the United States illegally can be deported, it is also important to recognize that persons who have been previously deported may, if found in the United States after their deportation, be federally prosecuted.

8 USC 1326 prohibits a person who has “been denied admission, excluded, deported, or removed” to then “enter, attempt to enter, or [at] any time be found in the United States.”

Challenges to Illegal Reentry Charges

Successful prosecution of illegal reentry charges depends on the government’s ability to prove the original deportation was valid. If the immigration judge did not inform you of your right to stay in the country, if such a provision applied, the prior deportation order may be invalid. Depending on the circumstances, we may order the transcript of your immigration file (also known as Alien File) and transcripts of court proceedings to determine if your prior deportation order was valid. Similarly, if the prior deportation did not follow proper procedures, we might be able to negotiate a lesser charge.

When we order an Alien File or A-File we look for:

  • Prior statements to authorities.
  • Removal orders and Notices to Appear (NTA’s) or Orders to Show Cause (OSC).
  • Documents relating to criminal history.
  • I-205 warrant of removal.
  • Any previous immigration applications the person may have filed,
  • Prior legal status the person may have had.

We also analyze the case for a Lopez-Mendoza collateral attack which has three steps:

  1. The deportation proceeding must have been “fundamentally unfair.”
  2.  The alien was deprived of judicial review; and
  3. The defect must have prejudiced the alien, depriving him of what would otherwise have been a reasonable likelihood of avoiding removal.

Statutory Penalty Range for Illegal Reentry: The Outer Boundaries

The overall penalty is a federal felony that can carry anywhere up to 20 years prison depending upon certain circumstances. It is also important to recognize that this prison term does not eradicate a separate deportation consequence. That is, upon completion of the prison sentence, the prisoner is then deported.

A person who has been deported in the past is subject to a sentence of up to 2 years. However, if the deportation was due to a criminal conviction, that sentence can be as high as 20 years.

The length of sentence typically has to do with the criminal history of the defendant.

If a defendant has committed 3 or more misdemeanors involving drugs or a crime against a person, or a felony, that person is subject to an imprisonment range of 0-10 years. Further, if a defendant has reentered after committing an aggravated felony, that person is likely subject to an imprisonment range of 0-20 years.

If the defendant has committed a previous aggravated felony, then the range is 0-20 years.

The terms felony and aggravated felony mean many different things in different circumstances. Under federal law, a felony is an offense that is subject to more than one year imprisonment in the territory where the offense occurred. Under federal law, and specifically in the context of illegal reentry, the term aggravated felony is defined under 8 USC 1101.

Our attorneys defend federal illegal reentry charges throughout the country. If your loved one needs help, anywhere in the country, contact us.

Guideline Range: Suggested Actual Sentences for Illegal Reentry Charges

The United States Sentencing Guidelines are a set of standards used to present a federal judge with a suggested specified range for punishment. As opposed to the statutory range, the guideline range often takes specific aspects of the offense into account to create a tailored penalty range. Guideline ranges are not mandatory after Booker but followed by federal judges in the great majority of cases.

For Illegal Reentry cases the Guidelines are driven by the prior criminal history of the person. Specifically, all cases begin with a base offense level of 8.

However, several enhancements may come into play to increase the offense level, and as a consequence, the guideline range.

If a defendant commits illegal reentry after committing a prior felony illegal reentry, then the offense level is increased by 4 levels.

If a defendant commits illegal reentry but had committed a felony after being deported in the first place, then the offense level increases by 4-10 levels depending on the seriousness of the felony.

It is also important to recognize that if a defendant has 3 misdemeanor drug convictions, before or after the initial deportation, then the level is increased by 2 levels.

Contact Us

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