Varghese Summersett

Getting pulled over by police is nerve-wracking under any circumstance, but what happens if you get stopped and you have marijuana, a gun, or an open container of alcohol in the vehicle?  In this article, the board certified criminal attorneys at Varghese Summersett explain the potential consequences of a Texas traffic stop if you have if you have prohibited substances, firearms, or alcohol in your possession.

texas traffic stop

Scenario 1: Texas Traffic Stop and the Smell of Marijuana 

If you are stopped by police in Texas, and the officer smells marijuana, they have the right to search your vehicle – even without a warrant or consent of the owner.

Legal Basis and Implications

In Texas, marijuana is still illegal. That means if an officer smells marijuana, they have probable cause to believe that a crime has been committed and can search your vehicle. People sometimes wrongly believe that an officer has to have a warrant to search your property. This is true if it is your home, but it does not apply to your vehicle.

Officers have the ability to search your vehicle under what is commonly referred to as the “automobile exception” to the 4th Amendment. This exception is predicated on the rationale that because drivers can take off, securing a warrant is often impractical and could potentially allow for the destruction or removal of evidence. Therefore, when there is probable cause—such as the smell of marijuana emanating from the vehicle—officers in Texas have the legal authority to perform a search promptly and without a warrant, aligning with the stipulations of the “automobile exception.”

If marijuana is discovered during the search, the individual can be charged with possession of marijuana, which can range from a Class B misdemeanor to a felony, depending on the amount found. If any other incriminating evidence or illegal items are discovered during the search, such as unlawful firearms, drugs or stolen property, additional charges can be brought.

Odor of Marijuana (vs. Hemp) as Reasonable Suspicion for a Stop

Challenging reasonable suspicion based on the odor of marijuana in Texas, particularly after the enactment of House Bill 1325 on June 10, 2019, involves a nuanced legal argument that underscores the inherent difficulty in distinguishing between legal hemp and illegal marijuana without specific laboratory testing.

The pivotal aspect of HB 1325, which differentiates hemp from marijuana based on a THC concentration threshold of 0.3 percent, becomes a crucial point of contention in establishing the legitimacy of reasonable suspicion solely based on odor. Given that both hemp and marijuana emanate a similar scent, officers are unable to definitively ascertain the legality of the substance in question merely through smell. This inability to differentiate between the odors of hemp and marijuana, and thereby determine the legality of the substance, brings the constitutionality of searches and seizures based on such suspicion into question, invoking considerations related to the Fourth Amendment.

Texas Traffic Stop: What if You Have Drugs, Guns or Alcohol?

Scenario 2: Unlawful Carrying of a Weapon During a Texas Traffic Stop

In Texas, having a gun in your vehicle is generally legal in Texas – unless you are committing an offense higher than a Class C misdemeanor, are a gang member, or are otherwise prohibited from possessing a firearm. In this section, we discuss Unlawful Carrying of a Weapon (UCW) and a Texas traffic stop.

In Texas, if you are pulled over and police discover you are committing some other type of crime, you can be charged with Unlawful Carrying of a Weapon (UCW) in addition to whatever other crime you are committing.

Understanding the Law & Possible Charges

Under Texas Penal Code § 46.02, it is illegal to carry a weapon while committing an offense that is more than a Class C misdemeanor (which is a ticket.) Unlawful carrying of a weapon is generally a Class A misdemeanor punishable by up to a year in jail and a $4,000 fine. Below are examples of how someone can be charged with UCW during a traffic stop.

  • Driving While Intoxicated (DWI)
    If a driver is stopped and found to be intoxicated and there is a gun in the vehicle (even if it’s in a locked glove box or console), they can face UCW charges along with the DWI charge.
  • Possession of a controlled substance
    If a driver is stopped for a traffic violation and subsequently found to be in possession of a controlled substance (a THC vape pen, cocaine, methamphetamine, etc.) while having a gun in the vehicle, this can lead to a UCW charge along with drug charges.
  • Evading Arrest
    If a driver attempts to flee police and is apprehended with a weapon in their vehicle, they can be charged with UCW in conjunction with evading arrest.
  • Engaging in Organized Crime
    Under Texas Penal Code § 46.02, a person commits an offense of Unlawful Carrying Weapons if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is a member of a criminal street gang. This means if a person, identified as a gang member, is found with a gun in their car, they can be charged with Unlawful Carrying of Weapons, regardless of whether they are committing another crime at the time or not.

Texas Traffic Stop: What if You Have Drugs, Guns or Alcohol?

Scenario 3: Open Container and a Texas Traffic Stop

In Texas, it is illegal to have an open container of alcohol a vehicle while it is on a public roadway. This means that even if you are not drinking, having an open bottle or can of alcohol in your car can lead to legal trouble. So what happens if you are pulled over for a traffic stop and the officer finds an open container of alcohol in your vehicle?

Possible Consequences

If an open container is found during a Texas traffic stop, it can result in a Class C misdemeanor and a fine of up to $500. This may not seem like much compared to other criminal offenses, but having this charge on your record can still have negative consequences. It could also lead to a larger fine and potential jail time if the traffic stop was a result of another offense, such as Driving While Intoxicated (DWI) or possession of drugs.

Texas Traffic Stop: What if You Have Drugs, Guns or Alcohol?Scenario 4: Searching a Passenger’s Personal Belongings

In Texas, the rules governing the search of a passenger’s personal belongings during a traffic stop are dictated by the Fourth Amendment’s protection against unreasonable searches and seizures.

Establishing Probable Cause or Consent

Officers may not arbitrarily search a passenger or his or her personal belongings. To legally conduct a search, law enforcement must either obtain the passenger’s clear and voluntary consent or establish probable cause that the passenger is involved in criminal activity or possesses evidence of a crime in their belongings.

For example, if an officer smells marijuana during a traffic stop and the passenger has a backpack on the backseat, they may have probable cause to search that backpack. However, if the passenger consents to the search or denies consent but is arrested and their belongings are searched as part of a lawful arrest, then any evidence found can be used against them in court.

For an officer to search a passenger’s belongings without consent, there must be specific and articulable facts leading to a reasonable belief or suspicion that the passenger is involved in criminal activity. A mere traffic violation committed by the driver does not inherently grant the officer the right to search a passenger’s personal items.

Asserting Your Rights

Passengers have the right to respectfully decline a search of their personal belongings if the officer does not have a warrant, there is no probable cause, or exigent circumstances are not present. Passengers can ask if they are free to leave and should clearly and unequivocally state that they do not consent to a search.

Protecting Your Rights with Varghese Summersett

Facing charges stemming from a traffic stop or search in Texas can be a frightening experience, with potential long-term consequences. At Varghese Summersett, our team of seasoned attorneys will meticulously evaluate every facet of the traffic stop, search, and subsequent proceedings to ascertain any violations of your rights or procedural problems.

We will scrutinize the legitimacy of the stop, the conduct of the search, and the foundations of any charges levied against you. If there is an issue, we will find it and use it to your advantage. Our goal is always to achieve the best possible result for our clients, whether it be a dismissal of charges or a reduction of penalties. Call us today at 817-203-2220 for a free consultation with an experienced attorney.


Varghese Summersett

Varghese Summersett has been named a “Small Business of the Year” by the Fort Worth Chamber, a distinguished award that recognizes and honors small businesses that have demonstrated exemplary best practices of entrepreneurship.

The award recipients were announced on Friday, October 6, during Fort Worth Mayor Mattie Parker’s annual “State of the City” event at the Fort Worth Convention Center.  Mark Nurdin, President and CEO of Bank of Texas-Fort Worth, presented the awards before a sold-out crowd of more than 1000 attendees.

“Small businesses are the lifeblood of a growing economy and essential for Fort Worth,” Nurdin told the audience. “They drive innovation, create jobs, and fuel growth, so their success is success for Fort Worth. Bank of Texas is honored to support and empower these small businesses, and many others, as they continue to innovate and thrive.”

Varghese Summersett Named 2023 Small Business of the Year
 (VS Managing Partner Benson Varghese, Fort Worth Mayor Mattie Parker and VS Partner Anna Summersett) 

Twelve small business finalists were invited to the event, where 5 winners were announced in categories based on size and stages of development. Varghese Summersett won in the category of 21 to 50 employees.

Benson Varghese and Anna Summersett
      (Benson Varghese and Anna Summersett)

“Being named a ‘Small Business of the Year’ by the Fort Worth Chamber is an incredible honor,” said Benson Varghese, Managing Partner of Varghese Summersett. “When I started out, nearly a decade ago, I knew Fort Worth was the place to be. The incredible growth that we’ve seen is a reflection of what is happening in Fort Worth. We’re privileged to help good folks in this community through the toughest times in their lives.

“This award is for every member of our team who works tirelessly to uphold our commitment to excellence by providing unmatched service and obtaining unparalleled outcomes for our clients. I couldn’t be prouder, and I am thankful to the Chamber for recognizing those efforts.”

The Fort Worth Chamber presented its first awards for Small Business of the Year (SBOY) in 1998 and the prestigious program has continued to evolve. The annual awards are presented to businesses that have demonstrated exemplary best practices of entrepreneurship, including sound business planning, fiscal responsibility, and work process innovation.

This year, the first round of judging utilized blind assessments, where the judges evaluated the companies without being aware of their names. The selection process criteria included talent attraction and retention (45 percent); business challenges and solutions (30 percent); and community engagement and diversity, equity and inclusion (DEI) initiatives.

Varghese Summersett Named 2023 Small Business of the YearFrom there, the judges nominated 12 finalists – 3 in each category, who  attended in-person interviews with a panel of community leaders. The finalists were also invited to attend a newly-created “Small Business of the Year Showcase,” which was held before the State of the City address and allowed the businesses to showcase their services or products.

After the Small Business Showcase, the finalists and members of their team were asked to attend the State of the City event, where the winners were announced in the following categories:

Divine Intervention Recovery: Emerging Business

6th Avenue Storytelling: 1-20 Employees

Varghese Summersett: 21 – 50 Employees

Ampersand Coffee and Auticon USA: 51-100 Employees (co-winners)

Steve Montgomery, President and CEO of the Fort Worth Chamber of Commerce, extended congratulations to the 2023 award recipients for the exceptional achievements and their invaluable contributions to our community.

“Fort Worth has always been a city that champions its small business,” Montgomery said. “We take immense pride in recognizing the hard work, dedication, and innovation demonstrated by Divine Intervention, 6th Avenue Storytelling, Varghese Summersett, Ampersand Coffee, and Auticon USA. These businesses epitomize the entrepreneurial spirit that rules Fort Worth’s prosperity.”

Varghese Summersett Named 2023 Small Business of the Year
(From left to right: VS Partners Ty Stimpson, Tiffany Burks, Anna Summersett, Benson Varghese, Turner Thornton

About Varghese Summersett

Headquartered in downtown Forth Worth, Varghese Summersett is a premiere criminal defense, personal injury, and family law practice dedicated to helping people through life’s greatest challenges. The firm’s roster is full of highly-experienced, award-winning attorneys committed to providing exceptional legal services. Varghese Summersett has more than 680 5-Star Google reviews and has been named a “DFW Favorite,” a “Best Place to Work,” and a “Best Place for Working Parents,” among numerous other accolades. 

Varghese Summersett

Since January 1, 2016, Texas has allowed “open carry” — or wearing weapons in plain view in belt or shoulder holsters. That law was passed even though 75 percent of Texas police chiefs expressed opposition to open carry. Since then, lawmakers have passed more gun-related laws, several of which went into effect on September 1, 2019, and further loosened restrictions on open carry in Texas.

Now most Texans can carry a handgun in public without a special license to carry. Texans can also get a License to Carry (LTC) for additional benefits.

Who Can Open Carry in Texas?

Generally, Texans can carry in Texas if they meet the following requirements

  • Be at least 21 years old
  • Not have a prior felony conviction for which the punishment ended in the last five years and even after five years only at the person’s residence
  • Not be a member of a criminal street gang
  • Not have a conviction for family violence for which the punishment ended in the last five years
  • Not be subject to a protective order
  • Not be prohibited from carrying a firearm under federal law
  • Not be intoxicated other than inside one’s residence or inside one’s vehicle. (If you drive while intoxicated, that is unlawful carry of a weapon.)

18-year-olds and Open Carry in Texas 

A federal judge has ruled that it is unconstitutional for Texas to make it illegal for 18-20-year-olds to open carry in Texas. Texas has decided not to appeal that decision, so although Texas law says you have to be 21 to open carry, 18-20-year-olds are not going to be prosecuted under the current state of the law. 

Read the entire opinion here:

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Learn about: Campus Carry in Texas

Open Carry Laws that went in effect September 2019

Here’s a quick rundown of new laws that went into effect on Sept. 1, 2019, in Texas.

  • Senate Bill 535: allows Texans to carry guns in churches and other places of worship unless banned by those places with proper signage
  • Senate Bill 741: prohibits property owners’ associations from banning storage of guns on rental properties
  • House Bill 121: provides a legal defense for licensed handgun owners who unknowingly enter an establishment that bans firearms as long as they leave when asked
  • House Bill 302: prohibits landlords from banning renters and their guests from carrying firearms in lease agreements
  • House Bill 1387: loosens restrictions on the  number of school marshals who can carry guns at public and private schools in Texas
  • House Bill 1177: allows Texans to carry handguns without a license during a state of disaster
  • House Bill 1143: prohibits school districts from banning licensed gun owners from storing guns in their vehicle in parking lots
  • House Bill 2363: allows certain foster homes to store guns in locked locations.

Who Can Get a License to Carry in Texas?

A license to carry gives you additional rights, such as the ability to carry in a secured area like an airport, on a college campus, at a government meeting etc.

Generally, a person who has been a resident of the state for at least six months, who is at least 21 and has not been convicted of a felony and is of sound mind, may apply for a License to Carry. The exhaustive list of eligibility requirements includes:

  • Age 21 or older, although certain military exemptions apply for servicemen and women;
  • No felony convictions;
  • You do not have a pending disorderly conduct charge;
  • You are not being charged with felony;
  • You have not a fugitive for anything other than a warrant based on a Class C citation;
  • You are not chemically dependent;
  • You are capable of exercising sound judgment with respect to the proper usage and storage of a handgun;
  • You have not been convicted of any level of disorderly conduct in the last five years;
  • You have not been convicted of any Class A or Class B offense in the last five years;
  • You have never been convicted of a felony;
  • You are qualified under federal law to purchase a firearm; (See 18 USC 44 §922.)
  • You are not delinquent in making child support payments;
  • You are not delinquent in paying your taxes;
  • You are not subject to a protective order;
  • You have not been adjudicated as having engaged in delinquent conduct in the last 10 years;
  • You did not lie on your application.

Do I Need a License to Carry for Long Guns?

Long guns do not require a license to carry. The law only applies to handguns.

Can an Officer Stop Me for No Reason Other Than to Ask for my License to Carry?

No. An officer may not stop a person simply to determine if they have a License to Carry. While they may make a consensual encounter, the person with whom they are talking has the right to walk away, not answer questions, and not show their License to Carry.  On the other hand, if the officer has reasonable suspicion or probable cause that an offense has or is occurring, they may legally stop that person. If you are legally stopped and asked then you must show the officer your License to Carry.

What If I Refuse to Show an Officer my License to Carry?

If a police officer has a valid reason to stop you and then asks to see your License to Carry, failure to show your license is a violation of Government Code Section 411.205. However, the penalty that existed for this offense was removed by the legislature. (A previous version of the statute provided that failure to show a license to carry will result in a suspension of the license for a period of 90 days. A subsequent offense was a Class B misdemeanor.) For now, it is a violation without a penalty.

How Will a Criminal Conviction Affect my Ability to Get a License to Carry Under Texas law?

  1. A conviction for a Class C disorderly conduct charge will result in a five-year suspension in the ability to obtain a License to Carry.
  2. Any Class B or Class A conviction will result in a five-year suspension in the ability to obtain a license to carry.
  3. Any felony conviction will result in the loss of the privilege to obtain a license to carry.

Can I Carry a Handgun on a University Campus?

Yes, but the firearm must be concealed when carrying on campus, which means it must be hidden in a holster, tucked in a backpack or purse. Institutions of higher learning do not allow open carry. You cannot openly carry a gun on campus. Learn more in this video with Board Certified Criminal Defense Lawyer Benson Varghese:

The law still prohibits the carry of firearms (and other weapons) in the following locations:

  1. A polling place
  2. A court or office used by a court
  3. A racetrack
  4. In the secured area of an airport
  5. Within 1,000 feet of a state execution.

Until August 1, 2016, Penal Code 46.035 prohibited the carry of a handgun, even with a License to Carry, in the following locations:

  1. A business that gets 51 percent or more of its income from the sale of alcohol
  2. School, collegiate, or professional sporting events
  3. A correctional facility
  4. Hospitals and nursing facilities
  5. Amusement parks

Does Being Intoxicated Affect the Ability to Carry with a License to Carry?

Yes. It is an offense to carry a handgun, even with a License to Carry, if the person carrying the handgun is intoxicated.

Varghese Summersett

A motion to suppress evidence in Texas is a legal challenge brought by a defendant in a criminal case, asking the court to prevent prosecutors from introducing certain evidence against them at trial. If the motion is granted, it is often a game-changer for the defense because the evidence is thrown out (i.e. suppressed).

In this article, Board Certified Criminal Defense Attorney Benson Varghese explains how a motion to suppress evidence in Texas works, common scenarios when it might be filed, and the impact it can have on the outcome of a criminal case.

First, please watch this informative video:

Motion to Suppress Evidence in Texas: Texas Code of Criminal Procedure 38.23

A motion to suppress evidence in Texas is a formal legal request made by a defendant or their attorney. This request seeks to prohibit certain evidence from being presented in court, on the grounds that it was obtained illegally or in violation of the defendant’s constitutional rights.

Article 38.23 of the Texas Code of Criminal Procedure states that “no evidence obtained by an officer or another person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

A motion to suppress is usually based on the grounds that:

1) the police obtained the evidence unlawfully or unconstitutionally;

2) there was an improper or illegal search, seizure, arrest, or interrogation;

3) the evidence was obtained in violation of a defendant’s right to remain silent;

4) the evidence was obtained in violation of the defendant’s Fourth Amendment rights; or

5) any other type of legal error associated with obtaining the evidence.

To prevail on a motion to suppress evidence in Texas, the defendant must prove there is a substantial likelihood that the evidence was obtained in a manner that is not allowed by either Texas law or the United States Constitution.

If successful in proving this, then the court will grant the motion and suppress (exclude) any evidence that was obtained as part of an unlawful search or seizure. Any further use of such evidence for trial purposes would be considered illegal and unconstitutional.

Reasons to file a motion to suppress

Reasons for Filing a Motion to Suppress Evidence

Understanding the circumstances that warrant the filing of a motion to suppress evidence in Texas is pivotal for someone accused of a crime, as well as the general public. This motion is a powerful tool in a  defense attorney’s arsenal, ensuring that constitutional rights are upheld and that trials are conducted fairly. Here are some common reasons why a motion to suppress evidence may be filed:

Unlawful Search and Seizure

Arguably the most common scenario, this pertains to violations of the Fourth Amendment of the U.S. Constitution, which protects individuals from unreasonable searches and seizures. Evidence obtained without a valid search warrant or outside the boundaries of an existing warrant can be suppressed.

Example: A police officer enters a person’s home without a warrant and finds illegal drugs. If the entry was without permission and no exigent circumstances existed, a motion to suppress could be filed and the drugs could be thrown out as evidence.

Failure to Provide Miranda Warnings

Before interrogating a suspect in custody, law enforcement officers are required to inform the individual of their Miranda rights, including the right to remain silent and the right to legal counsel. If these warnings are not given or not given properly, any statements or confessions made may be suppressed.

Example: A suspect is arrested and, without being read their Miranda rights, admits guilt during questioning. The confession could be excluded from evidence due law enforcement’s failure to provide proper warnings.

Involuntary or Coerced Confessions

A confession must be given voluntarily for it to be admissible in court. If a defendant can show that their confession was obtained through force, threats, psychological pressure, or other coercive methods, the confession can be suppressed.

Example: A person is detained and subjected to hours of aggressive interrogation without breaks, leading them to confess out of exhaustion. Such a confession might be deemed involuntary and suppressed.

Illegal Traffic Stops or Detentions

Evidence obtained from an unlawful traffic stop or an unjustified detention can be challenged and possibly suppressed.

Example: A driver is pulled over without any valid reason, and during the stop, the officer finds marijuana in the vehicle. The drugs might be excluded if the defense can show that police did not have reasonable suspicion to stop the vehicle in the first place.

Chain of Custody Issues

For evidence to be admissible, there must be a clear and unbroken chain of custody, ensuring it has not been tampered with or compromised. If there are gaps or issues in this chain, the integrity of the evidence can be called into question, leading to a motion to suppress.

Example: A blood sample is taken from a DWI suspect, but the storage and transfer logs show discrepancies, making it unclear if the sample was continuously handled properly. This could lead to a motion to suppress the blood test results. Without the blood, prosecutors may not have evidence that the driver’s BAC was over .08

Overbroad Warrants

While search warrants give law enforcement the authority to search specified areas for specific items, they must be clear and limited in scope. If a warrant is overly broad or vague, any evidence obtained may be suppressed.

Example: A warrant authorizes the search of a person’s living room for stolen electronics, but officers also search the bedroom and find unrelated illegal items. The evidence from the bedroom might be suppressed due to the overbroad nature of the warrant.

These are just some common scenarios that could warrant a motion to suppress evidence in Texas. This motion serves as a safeguard, ensuring that individuals’ rights are not violated during the legal process. Recognizing the scenarios under which this motion is commonly filed offers a clearer understanding of the protections in place within the U.S. justice system.

Types of Evidence that Can Be Excluded

Types of Evidence that May be Excluded

If a motion to suppress is granted, various types of evidence may be excluded from a criminal case. This could include:

1. Physical Evidence

Physical evidence refers to tangible items or material objects that are directly related to the case, such as weapons, drugs, stolen items, vehicles, photos or videos, or forensic samples. If obtained illegally, they can be excluded from the case.

2. Confessions

Confessions are admissions of guilt or statements that incriminate the individual making them. However, if they are obtained illegally, they can be kicked out.

3. Identification Testimonies

Identification testimony plays a crucial role in many criminal proceedings. At its core, it involves a witness, often a victim or another eyewitness, formally identifying a person as the perpetrator of a crime, usually through a lineup, photospread, or composite drawing. If this process is corrupt – sometimes by an officer suggesting who the perpetrator is – or coerced, this testimony may be excluded.

The Process of Filing a Motion to Suppress

1. Drafting the Motion

The defense attorney begins by drafting the motion, detailing the reasons and legal basis for requesting the suppression of the evidence.

2. Submission and Scheduling

Once drafted, the motion is filed with the court. A hearing date is then scheduled, where both parties will present their arguments.

3. The Hearing

At the hearing, the defense will argue why the evidence should be excluded, while the prosecution will counter, explaining its validity and relevance.

4. The Court’s Decision

After considering all arguments, the judge will make a decision. If the motion is granted, the evidence in question cannot be used in court. If denied, the evidence remains admissible.

The Impact on the Outcome of Cases

Once evidence is suppressed, it cannot be presented in court by the prosecution. This can be a turning point in a case. With pivotal evidence excluded, the prosecution’s case might be weakened, and they may find it challenging to prove guilt beyond a reasonable doubt. This could potentially lead to reduced charges, a more favorable plea bargain offer, or even dismissal of the case.

Why are Motions to Suppress Evidence in Texas Important?

In Texas, as with the broader U.S., the motion to suppress evidence underscores the justice system’s commitment to upholding individual rights and ensuring that due process is observed. It acts as a check and balance, preventing potential overreach by law enforcement and ensuring trials are fair and just.

Speak to an Experienced Fort Worth Defense Attorney

Filing a motion to suppress evidence is just one of the strategies criminal defense attorneys use to defend their clients. If you’re facing criminal charges, it’s important to understand your rights and explore every available legal strategy.

The experienced Fort Worth criminal defense attorneys at Varghese Summersett have a proven track record of success getting evidence thrown out because law enforcement cut corners or failed to do their job properly. Contact us today at 817-203-2220 for a free consultation and find out why we are the firm people turn to when facing the biggest problems of their lives

FAQs about Motions to Suppress Evidence in Texas

What is the main goal of a motion to suppress?

The goal is to exclude unlawfully obtained evidence from being used against a defendant in court.

Not necessarily. While suppression can weaken the prosecution’s case, other evidence may still exist that can prove the case.

The defendant’s attorney files the motion with the court in which the defendant’s case is assigned, outlining the reasons why specific evidence should be excluded.

No, the judge makes the final decision based on the merits of the motion and the facts and circumstances surrounding the evidence.

If denied, the evidence in question can be presented in court by the prosecution.

This often requires demonstrating violations of rights or procedural mistakes through witness testimonies, video footage, or other means.

Yes, the prosecution can appeal a judge’s decision to grant a motion to suppress.

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What is DWI Open Container in Texas?

Driving while intoxicated (DWI) is a serious offense in Texas and an open container enhances the punishment a person faces if convicted. This article provides a comprehensive overview of DWI with an open container in Texas, shedding light on the specifics of the law, its implications, and the potential consequences one might face.

Definition of “Open Container”

In Texas, an “open container” is more than just an unsealed bottle or can. It refers to any bottle, can, or other receptacle that contains any amount of alcoholic beverage in the passenger compartment of a vehicle. This encompasses containers that are open, have been opened, have a broken seal, or have partially removed contents.

Texas DWI Open Container Offense

While a first-time DWI offense is classified as a Class B misdemeanor, the introduction of an open container into the equation doubles the minimum jail term from 72 hours to six days. 

Why You Should Listen to Us

We have handled thousands of DWI cases and gone to trial hundreds of times. As Board Certified Criminal Lawyers, we are experts in criminal law. Our experience in the courtroom is reflected by the 650+ five-star reviews we have earned.

Areas and Exceptions to the Open Container Law

While the open container law is comprehensive, there are limitations to its scope. The open container cannot be in areas designed for seating or any area within the driver’s reach, such as glove compartments and storage spaces. However, there are exceptions. For instance, the trunk of a car or the living quarters of a motorhome are exempt. Additionally, passengers in certain types of vehicles, like limousines and buses, are not bound by the same restrictions, given the nature of these vehicles and the separation between passengers and drivers.

elements of intoxication assault in texas

Legally Possessing an Open Container in a Vehicle in Texas

While the open container laws in Texas are stringent, there are specific scenarios where possessing an open container in a vehicle is permissible:

  1. Vehicle Trunks: The most common legal location for an open container is the trunk of the car. If your vehicle doesn’t have a traditional trunk, such as in the case of SUVs or hatchbacks, the area behind the last row of upright seats is considered equivalent to a trunk.
  2. Locked Glove Compartments: Some interpretations of the law suggest that a locked glove compartment or a similar locked storage area in a vehicle might be permissible for storing open containers, though it’s always safer to opt for the trunk.
  3. Living Quarters of Motorhomes: If you’re traveling in a motorhome or RV, the living quarters are exempt from the open container law. This means that while the driver and front passenger area should be free of open containers, they can be present in the living or sleeping areas of the vehicle.
  4. Passenger Areas of Commercial Vehicles: In vehicles like limousines, buses, or taxis where there’s a clear separation between the driver’s seat and the passenger area, open containers can be legally present in the passenger section.
  5. Unopened Containers: It’s worth noting that the law specifically targets containers that are open or have been previously opened. A sealed bottle of wine or a can of beer that has never been opened doesn’t violate the open container law, even if it’s in the passenger area.

Punishment Range for DWI with Open Container in Texas

In Texas, the penalties for Driving While Intoxicated (DWI) are already severe, but the presence of an open container in the vehicle at the time of the offense amplifies the consequences. A DWI Open Container (DWI OC) violation is treated as a Class B misdemeanor. However, the minimum jail term for this offense is notably higher than a standard DWI.

For a first-time DWI OC offense, the minimum jail term is six days, doubling the typical 72-hour minimum for a regular first-time DWI. Additionally, offenders can face fines of up to $2,000, license suspension, mandatory alcohol education programs, and potential community service. It’s also worth noting that subsequent offenses or the presence of other aggravating factors, such as a minor in the vehicle, can lead to even steeper penalties, including longer jail terms and higher fines.

The heightened penalties for DWI OC underscore the state’s commitment to deterring drunk driving and the additional risks associated with consuming alcohol within vehicles.

Penalties for Open Container Violations

Possession of an open container, even without a DWI charge, can result in a fine of up to $500. However, when combined with a DWI charge, the penalties are more severe, often involving jail time, hefty fines, and potential license suspension. It’s a clear message from the state: mixing alcohol and driving is a dangerous cocktail.

 DWI (Driving While Intoxicated)DWI OC (Driving While Intoxicated Open Container)
ClassificationClass B MisdemeanorClass B Misdemeanor
Minimum Jail Term72 hours6 days
Maximum FineUp to $2,000Up to $2,000
Mandatory EducationAlcohol education programAlcohol education program

Open Container in Relation to DWI Charges

Interestingly, it’s possible to face open container charges even without accompanying DWI charges. This means that even if you’re not intoxicated, having an open container in your vehicle can lead to legal repercussions. Conversely, an open container violation can also accompany DWI charges, adding another layer of complexity to the legal scenario.

Contact Us

If you find yourself facing charges related to DWI or open container violations, it’s essential to act promptly. Varghese Summersett is here to assist. With a team of seasoned attorneys, we offer expert guidance through the legal maze. Don’t delay; call us today at (817) 203-2220 or contact us online.

Varghese Summersett

Definition of Intoxication Assault

Intoxication assault, as set out in the Texas Penal Code, occurs when an individual, because of intoxication, causes serious bodily injury to another person.

This injury can result from the person operating a motor vehicle, aircraft, watercraft, or even an amusement ride. The term “serious bodily injury” is significant.

The law defines it as an injury that creates a substantial risk of death, results in death, serious permanent disfigurement, or impairs the function of any body part or organ either temporarily or permanently.

While the term “assault” might evoke images of intentional harm, intoxication assault is about the negligence arising out of intoxication, not a deliberate intent to cause harm.

Why Should You Listen to Us

We have gone to trial on Intoxication Assault cases, intoxication manslaughters and hundreds of driving while intoxicated cases. We have worked first as prosecutors and are now accomplished defense lawyers. A number of our partners are also Board Certified in Criminal Law – making them experts on the matter.

elements of intoxication assault in texas

Elements to Prove Intoxication Assault 

For someone to be convicted of intoxication assault, the prosecutor must successfully demonstrate a few specific elements beyond a reasonable doubt:

    Operation of a Vehicle or Machinery

    First and foremost, it must be proven that the accused was operating a vehicle or other machinery. This encompasses cars, boats, aircraft, and even amusement park rides.


    The prosecutor must establish that the individual was intoxicated at the time of the incident. This is typically done using evidence from breath, blood, or urine tests, though field sobriety tests and witness testimonies can also play a role.

    Direct Causation

    It’s not enough to show that the accused was intoxicated while operating a vehicle. The prosecutor must also show a direct link between this intoxicated operation and the resultant injury. In other words, the injury would not have occurred if not for the accused’s intoxicated state.

    Serious Bodily Injury

    As mentioned earlier, the injury in question must be “serious”. Proving this often involves medical testimonies and evidence to highlight the severity of the injury.

    What is Serious Bodily Injury in Texas?

    According to Texas Penal Code §1.07(a)(46), “serious bodily injury” is defined as:

    “Bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

    To break this definition down:

      Substantial Risk of Death

      This does not necessarily mean that death has occurred, but the injury is so severe that it could realistically result in death.

      Serious Permanent Disfigurement

      This refers to alterations to one’s appearance or external condition that are significant and long-lasting. Examples could be significant scars, burns, or other injuries that change one’s appearance in a pronounced manner.

      Protracted Loss or Impairment

      This element of the definition focuses on the long-term impact of the injury. “Protracted” suggests an extended period, meaning the injury isn’t just a temporary ailment. It encompasses situations where an individual might lose the function of a limb, organ, or any bodily member for an extended duration, if not permanently.

      It’s important to understand this definition, especially in the context of offenses like intoxication assault, the severity of the bodily injury can affect the charges and subsequent penalties. The distinction between “bodily injury” and “serious bodily injury” can often be the determining factor in the classification of an offense and its associated repercussions.

      Intoxication Assault in Texas: A Statistical Overview

      According to the Texas Department of Transportation, in 2019, there were over 2,500 crashes in Texas due to driving under the influence where serious injuries were reported. While not all of these necessarily translate into intoxication assault charges, it gives an approximation of the scale.

      In Texas, the term “serious bodily injury” has a specific legal definition as per the Penal Code, which differentiates it from other types of injuries. This definition is crucial in several legal contexts, particularly when determining the severity of an offense and the corresponding penalties.

      Possible Outcomes in an Intoxication Assault Case 

      Up to 10 Years in Prison

      Definition: A convicted individual can be sentenced to serve time in a state prison.

      Context: For intoxication assault cases in Texas, since it’s classified as a third-degree felony, the penalty can range from a minimum of 2 years up to a maximum of 10 years in prison. The exact duration depends on the specifics of the case, the defendant’s past criminal record, and the severity of the injury caused. This prison time is separate from any fines or other penalties that might also be imposed.

      Probation up to 10 Years

      Definition: Probation is an alternative to incarceration where the defendant remains free but must adhere to specific conditions set by the court.

      Context: In intoxication assault cases, if the defendant is found guilty (or pleads guilty), the court might sentence them to probation instead of, or in addition to, prison time. The conditions of probation can vary, including regular check-ins with a probation officer, attendance of alcohol education programs, community service, and more. The length of probation can be up to 10 years, depending on the severity of the offense and the defendant’s past record. Jail time is a mandatory condition of probation.


      Definition: A dismissal means the case is terminated and closed without any finding of guilt or conviction against the defendant.

      Context: In an intoxication assault case, a dismissal might occur for various reasons. Examples include evidence being inadmissible in court, flawed arrest procedures, or if a key witness becomes unavailable or recants their testimony.


      Definition: A “no-bill” decision occurs when a grand jury, after reviewing evidence presented by the prosecution, chooses not to issue an indictment against the accused.

      Context: In intoxication assault cases, a no-bill typically means the grand jury did not find enough evidence to warrant a trial. This could be due to questions around intoxication levels, uncertainties about the cause of the injury, or other factors.


      Definition: An acquittal means the defendant is found “not guilty” after a trial.

      Context: In the context of intoxication assault, an acquittal might result from the defense successfully casting doubt on the prosecution’s evidence. This can revolve around challenging blood alcohol content (BAC) tests, witness testimonies, or proving that the assault was not due to the defendant’s intoxication.

      Reduction to Misdemeanor

      Definition: If the prosecution cannot prove the element of “serious bodily injury”, the charges may be reduced from a felony (intoxication assault) to a misdemeanor (typically a DWI).

      Context: The distinction between bodily injury and serious bodily injury is crucial. If it’s demonstrated that the injuries sustained by the victim do not meet the threshold of SBI as defined in Texas law, then the more severe charge of intoxication assault might be dropped in favor of a lesser charge.

      Contact Us 

      If you have been charged with Intoxication Assault in Texas, put our experts on your side. Give us a call at (817) 203-2220 today.

      Varghese Summersett

      Attention parents and juveniles: Teenage vaping in Texas is illegal.

      It doesn’t matter if it’s nicotine or THC, it’s against the law for a juvenile to vape or smoke an e-cigarette in the Lone Star State. And that’s not all.

      Effective Sept. 1, 2023, public school students found in possession of a vape pen or e-cigarette on campus or at a school-sponsored event will now end up in alternative school. Texas legislators passed a law this year – House Bill 114 – which requires a mandatory placement in a Disciplinary Alternative Education Program (DAEP) for vaping.

      In this article, Board Certified Juvenile Lawyer Lisa Herrick explains teenage vaping laws in Texas, including the crimes and possible punishment, as well as the collateral consequences of possessing a vape or e-cig on campus.

      If your child has been caught with a vape in North Texas, it’s extremely important to contact a seasoned attorney who specializes in juvenile cases. Lisa can help. She is a foremost expert on Texas juvenile law and has a wealth of experience representing minors accused of vaping or drug offenses.

      Teenage Vaping in Texas | Punishment for THC & Tobacco 

      Vaping THC In Texas

      In Texas, it is a felony to vape THC in Texas, regardless of your age or the amount. Under Texas Health and Safety Code 481.103, tetrahydrocannabinol from sources other than the marijuana plant, are classified as a Penalty 2 Group Substance and any amount is a felony. Here’s the breakdown of the potential punishment for a THC conviction in Texas:

      • Less than one gram: state jail felony punishable by 6 months to 2 years in a state jail facility and a maximum $10,000 fine.
      • 1 – 4 grams: third-degree felony punishable by 2 to 10 years in prison and a maximum $10,000 fine.
      • 4 – 400 grams: second-degree felony punishable by 2 to 20 years in prison and a maximum $10,000 fine.
      • 400 grams or more: first-degree felony punishable by 5 to 99 years in prison and a maximum $50,000 fine.

      As you can see, the punishment for a conviction for possession of THC is extremely serious. Fortunately, if the teen is under the age of 17, they will likely be prosecuted as a juvenile, where the focus is on rehabilitation rather than severe punishment. Possible punishment options for teen vaping THC include drug counseling, a juvenile diversion program, juvenile probation, placement in a residential or treatment facility, or commitment to the Texas Juvenile Justice Department (TJJD).

      If your child has been accused of vaping THC in North Texas, contact Board Certified Juvenile Attorney Lisa Herrick. She specializes in juvenile cases and has represented hundreds of teenagers accused of violating the law in Texas, ranging from misdemeanors to very serious felonies.

      Vaping Nicotine In Texas

      Most people know vaping THC is illegal in Texas, but what about tobacco? In Texas, it is illegal for people under the age of 21 to purchase, possess, use, or accept a cigarette, e-cigarette, or tobacco product in Texas. 

      The legal age for tobacco used to be 18, but in 2019, Texas lawmakers cracked down in response to the rise of e-cigarettes among teens. They raised the minimum age to purchase or use tobacco to 21 years old – unless the person is at least 18 years old and on active duty in the military.

      According to Section 161.252 of the Texas Health and Safety Code, youth under age 21 who use or possess tobacco face a fine of up to $100. Violators may also be required to perform community service and attend a tobacco awareness class.

      It’s important to point out that this law also criminalizes chewing tobacco, cigars, and any other product that contains tobacco – not just vapes or e-cigs.

      Teenage Vaping in Texas | Punishment for THC & Tobacco 

      Alternative School for Teenage Vaping in Texas

      With the new school year underway, many school districts are sending out emails, videos, and text messages advising parents and students about a new law aimed at cracking down on teenage vaping at school.

      Beginning Sept. 1, 2023, any public school student found in possession of, using, selling, giving, or delivering e-cigarettes on school grounds or at school-related events must be temporarily placed in the district’s Disciplinary Alternative Education Program (DAEP). The new law stemmed from House Bill 114, which passed in the 88th Legislative Session and mandated that any student caught with an e-cigarette within 300 feet of any school property, regardless of whether they contain THC or not, to be temporarily placed in alternative schooling.

      The Texas Education Agency (TEA) leaves the length of the punishment up to districts, but in essence, an e-cigarette now carries the same penalty as bringing alcohol or drugs to school.

      For example, Fort Worth ISD leaders recently sent an email to families explaining the possible consequences of a student found in possession of an E Cig/Vape pen. A first-time offender with a device (with no THC) faces a one-day intervention at the district’s On Campus Intervention program. A repeat offender possessing an E Cig/Vape pen (3+ devices) with THC faces a disciplinary period of 20 days at the Metro Opportunity School.

      It’s important to point out that all districts have their own policies. To find out the punishment in your district, contact your school administration or review the Student Code of Conduct

      Collateral Consequences of Teenage Vaping in Texas

      In addition to the criminal and educational repercussions associated with teenage vaping in Texas, there are also collateral consequences that can follow a teen throughout their life if convicted of a juvenile offense. These could include loss of college scholarships, difficulty finding employment, and even a record that could potentially prevent them from being able to obtain financial aid or housing in the future.

      Lisa HerrickThat’s why it is extremely important to contact an experienced attorney who specializes in juvenile cases if your child has been accused of vaping THC or possessing drugs.

      Board Certified Juvenile Lawyer Lisa Herrick understands that youth make mistakes and are deserving of second chances. She will work tirelessly to get your child back on the right track without negatively impacting their future or their record.

      If your child is facing a drug charge (unfortunately not just nicotine), call 817-203-2220 to schedule a consultation with Lisa, a highly-regarded Texas expert in juvenile law. She is one of only two Board Certified Juvenile Attorneys in Tarrant County.

      Varghese Summersett

      Understanding Federal Gun Charges: A Comprehensive Guide

      In the United States, the right to bear arms is enshrined in the Constitution. However, this right is not without its limits and responsibilities. Federal laws regulate who can possess firearms, how they can be used, and what types of firearms are permissible. Violations of these laws can result in serious penalties, including imprisonment. In this blog post, we delve into the complex world of federal gun charges.

      We’ll explore the different types of offenses, from possession of a firearm by a prohibited person to engaging in the business of dealing in firearms without a license. For each offense, we’ll provide the relevant code section, a description of the crime, the potential punishment range, and possible defenses.

      Why You Should Listen to Us?

      Benson Varghese is a Board Certified Criminal Lawyer and an expert in criminal law. He began his career as a prosecutor and has been dedicated to the defense of individuals accused of crimes over the last decade. He has tried over 100 cases to juries and represented individuals accused with a variety of gun charges. 

      Whether you’re a legal professional, a gun owner, or simply someone interested in understanding more about federal gun laws, this guide will provide a comprehensive overview of the topic. However, it’s important to remember that this guide is a summary and the actual law contains more details and exceptions. Always consult with a legal expert if you have specific questions or are facing federal gun charges.

      Our Comprehensive Guide to Federal Gun Charges

      Let’s get started with our comprehensive guide to federal gun charges.

      Federal Gun Offense Punishment Range
      Possession of a Firearm or Ammunition by a Prohibited Person Up to 10 years imprisonment
      Selling, Giving, or Disposing of Any Firearm or Ammunition to a Prohibited Person Up to 10 years imprisonment
      Use, Carry, or Possess a Firearm in Relation to or in Furtherance of a Drug Felony or a Federal Crime of Violence At least 5 years up to life imprisonment, or death if death results from the use of the firearm
      Stolen Firearm, Ammunition, or Explosive Up to 10 years imprisonment
      Firearm in a School Zone Up to 5 years imprisonment
      Knowingly Possess or Manufacture Certain Types of Firearms Up to 5 or 10 years imprisonment, depending on the specific violation
      Sell, Deliver, or Transfer to a Juvenile Up to 1 year imprisonment, or up to 10 years if the transferor had reason to believe the juvenile would commit a crime of violence
      Forfeiture of Firearms, Ammunition, and Explosives Forfeiture of firearms, ammunition, or explosives
      Engaging in the Business of Dealing in Firearms Without a License Up to 5 years imprisonment

      Possession of a Firearm or Ammunition by a Prohibited Person

      Federal Code Section

      18 U.S.C. § 922(g) & (n)

      Understanding Possession of a Firearm or Ammunition by a Prohibited Person

      Federal law prohibits certain individuals from shipping, transporting, possessing, or receiving any firearm or ammunition. These individuals include those who have been convicted of a felony, those who are drug users or addicts, aliens, individuals who are the subject of restraining orders, individuals with prior convictions for domestic assault, fugitives from justice, and those who have been dishonorably discharged from the military.

      Punishment Range for Possession of a Firearm or Ammunition by a Prohibited Person

      If a person in any of these categories is found to be in possession of a firearm or ammunition, they could face up to 10 years in prison. 

      Possible Defenses to Possession of a Firearm or Ammunition by a Prohibited Person

      A potential defense could be that the person was not aware they were in possession of the firearm or ammunition, or that they fall under one of the exceptions provided in the law, such as having had their civil rights restored after a felony conviction.

      Selling, Giving, or Disposing of Any Firearm or Ammunition to a Prohibited Person

      Code Section

      18 U.S.C. § 922(d)

      Selling, Giving, or Disposing of Any Firearm or Ammunition to a Prohibited Person Explained 

      It is also a federal offense to sell or otherwise dispose of any firearm or ammunition to any person if you know or have reasonable cause to believe that the person falls within any of the categories listed above.

      Punishment Range for Selling, Giving, or Disposing of Any Firearm or Ammunition to a Prohibited Person

      This means that if you sell a firearm or ammunition to a person who is, for example, a convicted felon or a fugitive from justice, you could be sentenced to up to 10 years in prison.

      Possible Defenses to Selling, Giving, or Disposing of Any Firearm or Ammunition to a Prohibited Person

      A potential defense could be that the person did not know, and had no reason to believe, that the recipient was a prohibited person.

      Use, Carry, or Possess a Firearm in Relation to or in Furtherance of a Drug Felony or a Federal Crime of Violence

      Code Section

      18 U.S.C. § 924(c)

      Use, Carry, or Possess a Firearm in Relation to or in Furtherance of a Drug Felony or a Federal Crime of Violence Explained

      It is unlawful to use, carry, or possess a firearm during and in relation to, or possess a firearm in furtherance of, a drug trafficking crime or a crime of violence.

      Punishment Range for Use,How the feds prosecute gun cases Carry, or Possess a Firearm in Relation to or in Furtherance of a Drug Felony or a Federal Crime of Violence

      The punishment for this crime ranges from at least 5 years up to life imprisonment, without the possibility of parole. If death results from the use of a firearm, the person could face the death penalty.

      Possible Defenses to Use, Carry, or Possess a Firearm in Relation to or in Furtherance of a Drug Felony or a Federal Crime of Violence

      A potential defense could be that the firearm was not used in relation to or in furtherance of a drug felony or a federal crime of violence. For example, the firearm was not present at the time of the crime.

      Stolen Firearm, Ammunition, or Explosive

      Code Section

      18 U.S.C. § 922(j), (k), (l), & (u)

      Stolen Firearm, Ammunition, or Explosive Explained

      It is a federal crime to receive, possess, conceal, store, pledge, accept as security for a loan, barter, sell, or dispose of any stolen firearm, ammunition, or explosive that has been shipped or transported in interstate or foreign commerce. It is also a crime to steal or unlawfully take or carry away a firearm from the person or premises of a firearms licensee.

      Punishment Range for Stolen Firearm, Ammunition, or Explosive

      If a person is found guilty of this crime, they could face up to 10 years in prison.

      Possible Defenses

      A potential defense could be that the person did not know that the firearm, ammunition, or explosive was stolen.

      5. Firearm in a School Zone

      Code Section

      18 U.S.C. § 922(q)


      Federal law makes it a crime to possess or discharge a firearm in a school zone.

      Punishment Range

      If a person is found guilty of this crime, they could face up to 5 years in prison.

      Possible Defenses

      A potential defense could be that the person did not know they were in a school zone, or that they were authorized to possess the firearm in the school zone under the law.

      6. Knowingly Possess or Manufacture Certain Types of Firearms

      Code Section

      18 U.S.C. § 922(a), (b), (o), (v), & (w)


      It is unlawful to knowingly possess or manufacture certain types of firearms. These include machine guns, firearm silencers, sawed-off shotguns, sawed-off rifles, destructive devices, semi-automatic assault weapons manufactured after October 1, 1993, and any firearm which lacks a serial number or contains an altered or obliterated serial number.

      Punishment Range

      If a person is found guilty of this crime, they could face up to 5 or 10 years in prison, depending on the specific violation.

      Possible Defenses

      A potential defense could be that the person did not know that the firearm they possessed or manufactured fell into one of the prohibited categories.

      7. Sell, Deliver, or Transfer to a Juvenile

      Code Section

      18 U.S.C. § 922(x)


      It is a federal crime to sell, deliver, or transfer a handgun or handgun-only ammunition to a person who is under the age of 18. It is also a crime for a person under the age of 18 to possess a handgun or handgun-only ammunition. There are certain exceptions to this law, such as when the juvenile has written permission from a parent.

      Punishment Range

      If a person is found guilty of this crime, they could face up to 1 year in prison. However, if the person who transferred the gun or ammunition had reason to believe the juvenile would commit a crime of violence with the gun or ammunition, the sentence could be up to 10 years in prison.

      Possible Defenses

      A potential defense could be that the person did not know the recipient was a juvenile, or that one of the exceptions provided in the law applies.

      8. Forfeiture of Firearms, Ammunition, and Explosives

      Code Section

      18 U.S.C. § 924(d)


      This section of the law authorizes the seizure and forfeiture of firearms, ammunition, and explosives that are involved in criminal offenses.

      Punishment Range

      The punishment for this crime is the forfeiture of the firearms, ammunition, or explosives.

      Possible Defenses

      A potential defense could be that the firearms, ammunition, or explosives were not involved in a criminal offense.

      9. Engaging in the Business of Dealing in Firearms Without a License

      Code Section

      18 U.S.C. § 922(a)


      It is a federal crime for any person, except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms.

      Punishment Range

      If a person is found guilty of this crime, they could face up to 5 years in prison.

      Possible Defenses

      A potential defense could be that the person was not “engaged in the business” of dealing in firearms as defined by the law, but was instead making occasional sales or exchanges as part of a personal collection or hobby.

      Please note that this guide is a summary and the actual law contains more details and exceptions. Always consult with a legal expert if you are facing federal gun charges.

      Varghese Summersett

      In a landmark decision, the United States Sentencing Commission (USSC) has voted 4-to-3 in favor of the delayed retroactive application of Amendment 821, which pertains to criminal history. This significant move makes specific inmates eligible for reduced sentences, with the retroactive changes becoming effective from February 1, 2024.

      Amendment 821 itself introduces newly created Section 4C1.1 of the U.S. Sentencing Guidelines that goes into effect on November 1, 2023 and will apply to current cases as well as retroactively.

      Two-Level Decrease for Zero Point Offenders

      Understanding the Amendment 821 Two-Level Decrease for Zero Point Offenders

      Amendment 821 introduces a new guideline in Chapter Four at §4C1.1 titled “Adjustment for Certain Zero-Point Offenders.” This guideline offers a two-level decrease from the offense level determined under Chapters Two and Three. It’s applicable to defendants who:

      • Didn’t receive any criminal history points and
      • Whose immediate offense didn’t involve certain aggravating factors.

      Most white-collar defendants have no criminal history, so this amendment could lead to reduced sentences for many white-collar crimes. It is also expected to impact a large number of lower-level drug offenses.

      Who cannot benefit from Amendment 821’s Two-Level Reduction for Zero Point Offenders?

      An individual cannot benefit from Amendment 821 if they: 

      • Had any prior criminal history points;
      • Used violence or credible threats of violence in connection with the offense;
      • Caused death or serious bodily injury because of the offense;
      • Committed a sex offense;
      • Personally caused substantial financial hardship;
      • Received a terrorism adjustment under § 3A1.4;
      • Possessed, received, purchased, transported, transferred, sold, or disposed of a firearm or other dangerous weapon (or induced another person to) in connection with the offense;
      • Committed a civil rights offense covered under § 2H1.1 (Offenses Involving Individual Rights);
      • Committed a hate crime;
      • Received an adjustment under § 3A1.1 (Hate Crime Motivation or Vulnerable Victim), § 3A1.5 (Serious Human Rights Offense), or § 3B1.1 (Aggravating Role); or
      • Engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.

      status point changes

      Status Points Changes in Amendment 821 

      “Status Points”

      Amendment 821 also specifically targets the impact of providing additional criminal history points for offenders under a criminal justice sentence, commonly known as “status points”.

      In the existing Guidelines Manual, an offender is assigned two criminal history points, known as “status points”, if they committed the current offense while under any form of criminal justice sentence. This includes situations where the offender was on probation, parole, supervised release, imprisonment, work release, or even escape status. 

      Who Qualifies for the Status Point Adjustment?

      This applies to individuals whose sentences included status points, which is an increase in sentencing because at the time of the offense they were serving some other sentence, such as probation or parole.

      Changes to the Application of Status Points under 4C1.1

      The 2023 amendment aims to limit the impact of these “status points”. The changes are as follows:

      • The “status points” provision will now only apply to offenders with more severe criminal histories under the guidelines.
      • Offenders with less severe criminal histories, specifically those with six or fewer criminal history points, will no longer receive “status points”, even if their current offense was committed while they were under a criminal justice sentence.
      • For offenders who are under a criminal justice sentence and have seven or more criminal history points, they will now be assessed only one additional criminal point, as opposed to the previous two points.

      New Commentary in 5C1.1 for Zero Point Offenders

      Although most federal cases are resolved through a prison sentence, defendants, this amendment also comes with a presumption against prison time for qualifying defendants. This presumption is found in the commentary to U.S.S.G. § 5C1.1
      It provides the presumption against imprisonment for defendants who

      1. Receive the Zero-Point Offender Adjustment AND
      2. Has a recommended guideline range within Zones A or B.

      A defendant may even be able to qualify outside of Zones A and B, if

      1. They receive the Zero-Point Offender Adjustment AND
      2. The applicable guideline range overstates the gravity of the offense because the offense of conviction is not a crime of violence or an otherwise serious offense.

      The Impact of the Retroactive Application of Amendment 821 

      The United States Sentencing Commission’s Impact Analysis from July 2023 sheds light on the potential effects of this retroactive application:

      • 11,495 inmates will have a reduced sentencing range under Part A of Amendment 821, with an average sentence reduction of 11.7%.
      • 7,272 inmates will be eligible for a reduced sentencing range under Part B of Amendment 821, with an average sentence reduction of 17.6%.

      A New Era for the United States Sentencing Commission?

      The USSC, after achieving a quorum of commissioners for the first time since 2018, has been actively voting on amendments to the federal sentencing guidelines. The retroactivity passed by a margin of one vote and came as a surprise to many. The Commission’s recent evidence-based research indicated that the “status points” might not be as effective in predicting the criminal history score as initially expected. This realization led to the decision to refine the treatment of “status points” and “zero points” under Chapter Four of the Guidelines Manual. Could this mark a new era for the USSC? Only time will tell.  

      How to apply for relief

      United States Section 3582(c)(2) allows a defendant to file a motion to reduce the term of imprisonment based on changes made by the Sentencing Commission. The sentencing court is permitted, but not required, to reduce the term of imprisonment. §1B1.10. Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement) provides this is not a full resentencing.

      When can defendants begin receiving relief?

      Defendants who are currently incarcerated are officially eligible for reduced sentences beginning on February 1, 2024.

      What should you do if the two-level reduction applies to you?

      If you believe you are eligible for relief under this amendment, contact an attorney to assist you. The attorneys at Varghese Summersett can be reached at (817) 203-2220.

      Varghese Summersett

      Texas already has some of the harshest drunk driving laws in the country, and now, lawmakers have taken it one step further. Governor Greg Abbott recently signed a law that requires drunk drivers who cause a crash that kills a parent to pay child support until the surviving child (or children) turn 18 or graduate high school.

      The new law takes effect on September 1, 2023.

      In this article, Board Certified Criminal Defense Lawyer Benson Varghese explains the new law, the legislative intent behind it, and how civil restitution (in addition to criminal punishment) applies to a defendant convicted of intoxication manslaughter in the death of a parent in Texas.

      Restitution for Child Victim of Intox Manslaughter

      Mandatory Restitution for Child of Victim of Intoxication Manslaughter

      Beginning September 1, 2023, anyone convicted of intoxication manslaughter in Texas will be required to pay monthly child support if they caused a crash that resulted in the death of a parent with minor children. The new law – passed in the 88th Texas legislative session as House Bill 393 – amends Chapter 42 of the Texas Code of Criminal Procedure by adding Section 42.9375 titled: “Mandatory Restitution for Child of Victim of Intoxication.”

      This statute states that:

      • The court shall order a defendant convicted of intoxication manslaughter to pay monthly restitution for a child whose parent or guardian was killed until the child reaches age 18 or has graduated from high school, whichever is later.
      • The defendant is not required to pay restitution to an individual who is 19 years or older.
      • The court shall determine the amount of restitution based on what is reasonable and necessary to support the child after considering all relevant factors including:
        • the financial needs and resources of the child;
        • the surviving parent or guardian or other current guardian of the child or, if applicable, the financial resources of the state if the Department of Family and Protective Services (DFPS) has been appointed as a temporary or permanent managing conservator of the child;
        • the standard of living to which the child is accustomed;
        • the physical and emotional condition of the child and his or her educational needs;
        • the child’s physical and legal custody arrangments;
        • the reasonable work-related child care expenses of the surviving parent or guardian or other current guardian if applicable; and
        • the financial resources of the defendant.
      • If the defendant is unable to pay due to incarceration, he or she shall begin payments within one year of being released in a payment plan agreed by the court. The state has the authority to remit these payments.

      Bentley’s Law: The Legislative Intent

      Texas’ new child support intoxication manslaughter law is also referred to as “Bentley’s Law.” Like a lot of legislation, it stemmed out of a tragedy, which attracted nationwide attention. On April 13, 2021, a mother, father, and their 4-year-old son were killed in a drunk driving fatality in Missouri. They left behind two other sons, Bentley and Mason, who went to live with their grandmother, Cecilia Williams.

      Over the next two years, the grandmother advocated for a law that would mandate drunk drivers, when convicted of causing the death of a parent, to provide child support to the surviving underage children.

      In 2022, Tennessee became the first state to pass “Bentley’s Law.” Since then, more than a dozen states have introduced “Bentley’s Law” or are drafting this legislation. The Texas version of the law was signed in June and takes effect on Sept. 1, 2023.

      The Criminal Punishment for Intoxication Manslaughter in Texas

      Under the new Texas law, drunk drivers must pay child support if convicted of killing a parent – a punishment that is civil in nature. But the defendant will also face harsh criminal penalties that could include prison time, fines, and collateral consequences that will follow them for life.

      In Texas, intoxication manslaughter is a second-degree felony punishable by 2 to 20 years in prison and up to a $10,000 fine. Again, child support would be in addition to whatever criminal penalty is imposed

      Additionally, if more than one person is killed in a drunk driving crash, the defendant could face multiple counts – one for each death. For example, if two people were killed and a jury sentenced the defendant to 20 years on each case, the defendant could be sentenced to 40 years in prison if the judge decided to “stack” the sentences. Alternatively, the judge could also run both sentences concurrently at the same time, which is common in Tarrant and Dallas counties.

      Having said that, it’s also important to point out that it’s possible for a defendant to be sentenced to probation in an intoxication manslaughter case. However, if probation is given, it is usually for 10 years, and the defendant will be subject to numerous stringent conditions of probation, including refraining from alcohol use, performing community service, completing classes, and reporting regularly to a probation officer. Any violation of probation could result in up to a 20-year prison sentence.

      Please take a moment to watch this video about intoxication manslaughter charges in Texas by North Texas attorney Benson Varghese, who is highly adept at handling all types of intoxication crimes.

      Accused of Intoxication Manslaughter? Contact Us.

      Intoxication manslaughter cases are extremely difficult for everyone involved – in part, because the defendant never intended to kill anyone but nevertheless left a wake of destruction and grief that will last a lifetime.

      If you or a loved one has been accused of intoxication manslaughter in North Texas, it’s imperative to retain an experienced defense attorney who has vast experience handling these complex and highly emotional charges. At Varghese Summersett, we have successfully defended numerous intoxication manslaughter cases and understand the toll these cases have on families and individuals.

      We tailor a defense strategy that aligns with the unique circumstances of each case. Beyond just legal representation, we offer guidance, reputation management, and a path forward during one of life’s most challenging moments. Call 817-203-2220 for a free consultation with an experienced intoxication manslaughter lawyer today. We serve Fort Worth, Dallas and the surrounding areas.