In 1984, the United States Congress passed a new federal law, the Sentencing Reform Act of 1984, to try and solve a growing problem in this country: people facing the same crime in different parts of the country weren’t getting the same punishment. Different regions could be counted on to dispense justice in different ways, and Congress decided that things should be uniform: the same sentencing across the board, no matter what part of the country was involved.
Federal Government Begins Using Standardized Sentencing Guidelines
So, Congress created the United States Sentencing Commission to make sure this happening, and from the Commission, there came the “federal sentencing guidelines.” A manual was printed that detailed what these guidelines were, and the manual was distributed to federal courts and federal prosecutors. (You can review that manual online in its latest version (2011) as well as read through the latest amendments.)
They only apply to federal courts, not to state courts. Federal sentencing guidelines do not control what Texas judges do in Texas courtrooms regarding Texas defendants. Most sentencing is done in state courts, not federal ones. There have been movements to have each state create its own standard in criminal sentencing guidelines, but in Texas when someone references “sentencing guidelines,” they’re talking about federal charges.
Supreme Court Changes Things in 2005 – They Are Not Mandatory
In 2005, the United States Supreme Court determined that these federal sentencing guidelines violated the 6th Amendment’s guarantee of a right to trial by a jury of one’s peers – which meant that the federal sentencing guidelines were no longer considered to be fixed requirements but instead proposals to be considered when a person was being sentenced in federal court. For details, you can read the case of United States v. Booker online.
Arguing the Amount of Time Behind Bars: Sentencing is Big Part of Criminal Defense Attorneys’ Job
Today, sentencing guidelines are advisory. Judges use the Federal Sentencing Guidelines Manual to compute what the guidelines suggest as punishment – so many months for a particular crime, factoring in past criminal history and the like – and then judges work with both the prosecutors and defense attorneys, hearing arguments from both sides, before deciding what amount of time someone should be incarcerated after they have been found guilty of a federal crime.
For example, in August 2012, Michael Lowe successfully argued to United States District Judge Jane Boyle that justice was served in the sentencing of his client not in accordance with the federal sentencing guidelines but instead to non-guideline sentence: Mr. Lowe’s client received 60 months — the absolute minimum sentence available according to the language of the particular criminal statute — after being in treatment and on bond for one year while the criminal proceedings progressed. Under the federal sentencing guidelines, as calculated in the Federal Sentencing Guidelines Manual, this person would have faced 235 – 293 months behind bars.
Sometimes, success in a criminal court does not mean an immediate “not guilty” verdict or the case being thrown out by the state; instead, the defendant may find victory with the court ordering “deferred adjudication” in his or her case. Here, as explained in Article 42.12 of the Texas Code of Criminal Procedure, once the defendant fulfills his deferred adjudication requirements, the deferred adjudication will not be “… deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense.”
This is a big benefit to the individual because it will impact his long term future: his future employment, his possible military service, his ability to get scholarships, financial aid, etc., and more will be impacted by the success of deferred adjudication. How? Because of deferred adjudication, he or she will not have a criminal conviction on their public record.
Once deferred adjudication is granted, the person must do what is required of him or her by the court. After the proof of a successfully completed deferred adjudication is brought before the court, the judge can “dismiss” the pending criminal charges and the case is dismissed.
Dismissal means no conviction on the person’s record. No fine. No jail time. Complete deferred adjudication and it’s case closed.
Some may recognize “deferred adjudication” as “delayed disposition.” In some areas, “delayed disposition” is offered for things like traffic tickets as a way to help keep traffic court backlogs down. For example, the City of Irving has a website detailing how minor traffic tickets can be handled online for “delayed disposition.”
What happens if someone fails to complete the requirements for deferred adjudication?
As long as the individual makes good on the requirements set by the court for deferred adjudication, then the court will dismiss the matter. If the requirements for deferred adjudication are not met, then the prosecutor can move the court for an adjudication of guilt. The person is held to be guilty as charged. The judge can then sentence them to jail time and they will have the crime with a finding of guilt appearing on their criminal record.
When a defendant succeeds in having “deferred adjudication” of his case, it means that the court has essentially postponed officially finding the person guilty and the judge puts his or her decision here on the back burner. If the defendant successfully completes the terms of the deferred adjudication, then the judge never, ever finds the defendant guilty.
However, strictly speaking, deferred adjudication is a form of probation under Texas law that is an option offered to the court for those facing charges of Class B misdemeanors or higher (Class A misdemeanors, felonies, etc.). The terms of the deferred adjudication may include some things that are the same as standard probation, including random drug testing and reporting to a probation officer.
However, in formal probation the defendant has been found guilty and there is a finding of guilt for the crime on his criminal record. Under formal probation, the defendant completes the terms of probation and he or she has a crime on their record though they have avoided spending time behind bars by completing the probation successfully. Those with deferred adjudication complete their terms and walk away without a conviction on their record. Big difference.
Will I be arrested for carrying a small amount of marijuana in Texas, say just a joint or even some seeds?
Whether or not you will be arrested will depend upon if you are caught with this small amount and if the police officer decides to make the effort to arrest you. However, you will be violating Texas law if you have any part of a marijuana plant in your possession whatsoever. There is no minimum amount of marijuana (or plant parts) that is acceptable in Texas.
Can I get a medical marijuana prescription in Texas?
No. And if you have an out-of-state prescription for marijuana, it will not protect you from being arrested if Texas law enforcement discovers you with marijuana in your possession. These prescriptions are not recognized in Texas law.
If I give some marijuana to a friend, then am I safe from being arrested for dealing marijuana?
No. The Texas Legislature has written laws that make it a Class B misdemeanor to gift small amounts of marijuana (one-quarter of an ounce or less) with a punishment of up to 6 months in the local county jail. So even if you aren’t selling the marijuana for profit you are still at risk for being arrested if you give away some pot.
Are there some places where it’s riskier to have marijuana than other places?
Yes. The Texas Penal Code (§ 481.134) defines certain places as “drug-free zones” and if you are caught with marijuana in one of these places, then your arrest for marijuana possession gets more serious as it will be considered a violation of a drug-free zone and a Class A misdemeanor (assuming you are carrying two ounces or less of marijuana). Class A misdemeanor carries a possible one year jail time.
Where are these drug-free zones? Anywhere (1) within 1,000 feet of any land that is owned, rented, or leased to a school or school board, the premises of a public or private youth center, or a playground; or (2) on a school bus.
Can I be arrested in Texas if I don’t have any marijuana but I do have a bong or pipe that is used to smoke marijuana?
Yes. It is illegal in Texas to have any kind of drug paraphernalia in your possession. According to the Texas Health and Safety Code (§ 481.125), “drug paraphernalia” this includes anything that is used to ingest or inhale smoke or otherwise introduce the drug into the human body and usually involves water pipes (bongs), papers and devices for hand-rolling cigarettes (joints), and other forms of pipes or bowls. Drug paraphernalia also includes items that can be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal marijuana.
Marijuana is a crime in Texas; there are no exceptions here, as in other states, for small amounts for personal use or for marijuana as medicinal purposes. And there does not seem to be a likelihood that this will change anytime soon.
First of all, marijuana remains an illegal drug under the federal drug laws. States have been changing their state criminal laws in recent years, however, and most know of the decriminalization of marijuana in California.
In 2011, recent attempts to change Texas law for small amounts of marijuana possession failed in a big way: HB 548 was offered as a proposed law that would allow someone found with 1 oz. or less of marijuana to be charged with a Class C misdemeanor which carries with it no jail time and a maximum fine of $500.00. This was a proposal by Harold Dutton, Jr., a state representative from Houston, and his bill never made it out of committee. Another proposed change to Texas marijuana laws was made in HB 1491 by Representative Elliot Naishtat, where possession of marijuana charges could be defended against in court with the “affirmative defense” of medical need, confirmed by a physician, but that bill failed as well.
Even though marijuana has been argued by the AMA’s Council on Science and the Public Health to help people suffering from cancer, multiple sclerosis, and neuropathic pain, in the State of Texas, they are not legally allowed to use marijuana to help ease their suffering. If you found with even a small marijuana seed, technically you are in violation of Texas criminal laws and you can be arrested.
When you are arrested in Texas for marijuana possession, the charge will be based upon how much marijuana you have with you at the time of the arrest. The line between misdemeanor and felony in Texas is drawn at 4 ounces.
If you are caught with 4 ounces of marijuana or more, then you are facing felony charges. Anything up to 4 ounces of marijuana, and you will be defending against misdemeanor charges. Here’s how it stacks up:
Misdemeanor – marijuana possession
Up to 2 ounces, you face 180 days in jail and $2000.00 fine; between 2 and 4 ounces, and it’s 1 year in jail and $4000.00 fine.
felony– marijuana possession
If you have anywhere between 4 ounces and 5 pounds, then you’re facing 6 months to 2 years and a $10,000 fine. If you’re caught with possession of over 2000 pounds of marijuana in Texas, then it’s possible under Texas law to spend the rest of your life behind bars, since the law gives that a maximum possible sentence of 99 years’ incarceration.
For details on the Texas Marijuana Laws, see the Texas Controlled Substances Act, Section 481.121 et seq.
These are the laws for possession of marijuana. The penalties under Texas marijuana laws get much more severe once issues of distribution or intent to sell for profit are added to the charges. Possession of marijuana, all by itself, is a severe charge here in Texas and one that anyone who is caught with marijuana should take very seriously.
Distinction: Charge versus Outcome
All is not lost if you or someone you love is busted for marijuana possession. After arrest by a police officer, the criminal justice system continues and due process moves forward. It is possible to have those charges reduced, or sometimes even dismissed outright.
For example, in August 2012 Michael Lowe successfully negotiated a client’s charge from felony marijuana possession to a misdemeanor charge that is eligible for record expunction once deferred adjudication probation is completed.
In June 2012, Mr. Lowe won a full dismissal of his client’s charge of marijuana possession as a Class B misdemeanor and not only with the client not serve jail time or pay a fine, expunging of that arrest record is also available.
In September 2011, the Texas Legislature added a specific section to the Texas Controlled Substances Act to cover the new and very popular synthetic marijuana (or fake weed) products being sold around the state and on the internet as incense (K2, Spice, etc.). The lawmakers try to cover all their bases and make all versions of these new synthetic drugs that mimic a marijuana high illegal; however, there may be defenses available not only regarding proof of possession but also for new synthetics that are not covered by the language of the statute (the law is well known for not being able to keep up with the speed of the marketplace).
Synthetic marijuana has lots of different names, some of the more common ones include: K-2, Spice, Bliss, Black Mamba, Bombay Blue, Blaze, Genie, Spice, Zohai, JWH -018, -073, -250, Yucatan Fire, Skunk and Moon Rocks. New names for new versions of fake weed pop up all the time: Serenity Now, for example.
Synthetic marijuana products are not cannabis (marijuana); instead, they can be any number of herbs or spices or just shredded material that is then sprayed with a chemical which is similar to the Tetrahydrocannabinol (THC) found in marijuana. These products are then sold as substitutes for marijuana, usually labeled as “incense.” (“Bath salts” are a similar type of marketing, but these are synthetic products that mimic cocaine.)
Possession of Synthetic Marijuana Is Illegal in Texas – What’s “Possession”?
In Texas, it is illegal to be in “possession” of synthetic marijuana as identified in the statute, no matter how you got it: gift, bought on the web, purchased at an ice house or convenience store as incense.
What is “possession” under the law? That’s an important question to ask: in Texas, “possession” means having “actual care, custody, control or management.” To be convicted, it must be shown that the accused intended to have the synthetic marijuana in their care, custody, control, or management and that they had full knowledge that the synthetic marijuana was indeed in their actual care, custody, control, or management. Synthetic marijuana found in an apartment or in a car may be the basis of an arrest, but if the person didn’t have full knowledge and actual legal possession of that synthetic marijuana, then they are not guilty of violating the law.
The Texas Statute: Penalty Group 2-A
This new section of the Controlled Substances Act makes possession of fake weed a crime that may mean monetary fines ($10,000 – $50,000) that are higher for the more synthetic marijuana found in possession at the time of arrest, along with time in jail from 6 months to 2 years for less than one gram of the synthetic marijuana. If someone is caught with large amounts of fake weed, defined in the statute as 400+ grams, then they can face incarceration in a Texas prison for anywhere from 5 to 99 years.
Texas Penal Code Section 481.1031 creates “PENALTY GROUP 2-A,” which is defined as any quantity of a synthetic chemical compound that is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring cannabinoids, including:
naphthoylindoles structurally derived from 3-(1-naphthoyl)indole by substitution at the nitrogen atom of the indole ring by alkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, or 2-(4-morpholinyl)ethyl, whether or not further substituted in the indole ring to any extent, whether or not substituted in the napthyl ring to any extent, including: AM-2201; JWH-004; JWH-007; JWH-009; JWH-015; JWH-016; JWH-018; JWH-019; JWH-020; JWH-046; JWH-047; JWH-048; JWH-049; JWH-050; JWH-073; JWH-076; JWH-079; JWH-080; JWH-081; JWH-082; JWH-083; JWH-093; JWH-094; JWH-095; JWH-096; JWH-097; JWH-098; JWH-099; JWH-100; JWH-116; JWH-122; JWH-148; JWH-149; JWH-153; JWH-159; JWH-164; JWH-165; JWH-166; JWH-180; JWH-181; JWH-182; JWH-189; JWH-193; JWH-198; JWH-200; JWH-210; JWH-211; JWH-212; JWH-213; JWH-234; JWH-235; JWH-239; JWH-240; JWH-241; JWH-242; JWH-258; JWH-259; JWH-260; JWH-262; JWH-267; JWH-386; JWH-387; JWH-394; JWH-395; JWH-397; JWH-398; JWH-399; JWH-400; JWH-412; JWH-413; and JWH-414;
naphthylmethylindones structurally derived from 1H-indol-3-yl-(1-naphthyl)methane by substitution at the nitrogen atom of the indole ring by alkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, or 2-(4-morpholinyl)ethyl, whether or not further substituted in the indole ring to any extent, whether or not substituted in the naphthyl ring to any extent, including: JWH-175; JWH-184; JWH-185; JWH-192; JWH-194; JWH-195; JWH-196; JWH-197; and JWH-199;
naphthoylpyrroles structurally derived from 3-(1-naphthoyl) pyrrole by substitution at the nitrogen atom of the pyrrole ring by alkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, or 2-(4-morpholinyl)ethyl, whether or not further substituted in the pyrrole ring to any extent, whether or not substituted in the naphthyl ring to any extent, including: JWH-030; JWH-145; JWH-146; JWH-147; JWH-150; JWH-156; JWH-243; JWH-244; JWH-245; JWH-246; JWH-292; JWH-293; JWH-307; JWH-308; JWH-309; JWH-346; JWH-347; JWH-348; JWH-363; JWH-364; JWH-365; JWH-366; JWH-367; JWH-368; JWH-369; JWH-370; JWH-371; JWH-372; JWH-373; and JWH-392;
naphthylmethylindenes structurally derived from 1-(1-naphthylmethyl)indene by substitution at the 3-position of the indene ring by alkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, or 2-(4-morpholinyl)ethyl, whether or not further substituted in the indene ring to any extent, whether or not substituted in the naphthyl ring to any extent, including: JWH-171; JWH-172; JWH-173; and JWH-176;
phenylacetylindoles structurally derived from 3-phenylacetylindole by substitution at the nitrogen atom of the indole ring with alkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, or 2-(4-morpholinyl)ethyl, whether or not further substituted in the indole ring to any extent, whether or not substituted in the phenyl ring to any extent, including: AM-694; AM-1241; JWH-167; JWH-203; JWH-204; JWH-205; JWH-206; JWH-208; JWH-237; JWH-248; JWH-249; JWH-250; JWH-251; JWH-252; JWH-253; JWH-302; JWH-303; JWH-305; JWH-306; JWH-311; JWH-312; JWH-313; JWH-314; and JWH-315;
cyclohexylphenols structurally derived from 2-(3-hydroxycyclohexyl)phenol by substitution at the 5-position of the phenolic ring by alkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, or 2-(4-morpholinyl)ethyl, whether or not substituted in the cyclohexyl ring to any extent, including: CP-55,940; CP-47,497; analogues of CP-47,497, including VII, V, VIII, I, II, III, IV, IX, X, XI, XII, XIII, XV, and XVI; JWH-337; JWH-344; JWH-345; and JWH-405; and
cannabinol derivatives, except where contained in marihuana, including tetrahydro derivatives of cannabinol and 3-alkyl homologues of cannabinol or of its tetrahydro derivatives, such as: Nabilone; HU-210; HU-211; and WIN-55,212-2.
Q: If my vehicle is pulled over by a police officer here in Texas, how does Texas law protect me?
A: Both state and federal laws provide lots of protection of your privacy and your property rights, among other things. However, don’t expect the officer to explain them to you.
Here are 10 things to know about your vehicle being stopped by a cop in Texas:
- Your car cannot be pulled over by the police without a reason. Law enforcement cannot stop your vehicle on a whim. They can’t pull you over just to look at your driver’s license and registration. Under the law, the law enforcement officer must have a reasonable belief that there has been either a violation of traffic laws or some other crime.
- Once stopped, you are under no legal duty to tell the officer anything other than your name and your home address. That’s it.
- You should have the proper stickers on the windshield of your car and your vehicle should be in good working condition. You can be legally stopped if a turn signal isn’t working, or you’ve gone past the month/year deadline on your state windshield sticker.
- You can ask to have your attorney with you for questioning at any time a law enforcement officer is asking you questions.
- You do not have to agree to any tests of your physical condition. There is no legal requirement that you do any breath tests, field sobriety tests, or blood tests. None.
- If things are getting complicated with the officer, stay calm. Use good manners. Ask for your lawyer, politely and firmly. Make sure you have the officer’s badge number.
- Your home cannot be entered by the law enforcement officer even if he’s stopped your car right out front. The Fourth Amendment of the U.S. Constitution has lots of protections for the homes of Americans. Exception: if you invite the officer inside. Another exception: the police have legal justification to do so (say, someone screams “help” from inside the home or there’s an explosion or other imminent danger signal).
- If your car is stopped then start watching the clock. Law enforcement cannot hold you there on the side of the road for an extended period of time. If things are taking too long, get your lawyer on the line.
- It’s not legal to drive under the speed limit, just over. You should not be stopped by law enforcement if you are driving less than the posted speed limit. That’s not suspicious behavior that justifies someone being pulled over under the law.
- It’s not legal to block your car or otherwise prevent your vehicle from moving forward once you’ve been pulled over. Law enforcement officers cannot restrict your freedom to leave after their pulled you over by parking in front of you or otherwise creating a barrier.
If you are arrested on a Driving While Intoxicated (DWI) charge in Texas, the police will take your driver’s license away from you. Legally, they confiscate it. Under Texas law, you then have around two weeks – only 15 days – to ask for a hearing to get that drivers’ license returned to you. This hearing is the Administrative License Revocation (ALR) hearing and it is your duty to formally request one. If you don’t request it – or you don’t request it within 15 days from the date of your arrest – then you will have waived your right to get your Texas driver’s license back while the DWI case is pending.
You will appear before a judge in a Texas courtroom. After hearing evidence and arguments from your lawyer and the state’s attorney, the judge makes the call on whether or not your driver’s license is returned to you.
Evidence will include the police officer who pulled you over and arrested you. If the police officer does not appear at the hearing, this can be used as argument that the state has not met its burden of proof to bar your driving privileges.
If the police officer does appear, then a skilled DWI defense attorney can question the officer on details that may reveal weaknesses in the state’s case. This cross-examination can be key not only to getting your driver’s license returned to you at the ALR hearing, but getting the DWI charges dismissed later.
At the ALR Hearing, the judge has many options and his or her decision will depend upon each case and the evidence and argument that has been presented to the judge at the ALR Hearing.
Sometimes, the judge will allow the license returned without limitation. Sometimes the judge will rule that the license will not be returned at all. However, there are other options available to the judge, including imposing a certain suspension period or allowing an occupational driver’s license until the DWI charges are adjudicated.
For more information on ALR Hearings or a confiscated Texas Drivers’ License, visit the Texas Department of Public Safety ALR Information Page or contact our offices via email or phone.
If you contact the Law Offices of Michael Lowe, your call or email will be promptly returned. Mr. Lowe will conduct an initial consultation free of charge.
Yes, but as the saying goes: “A person representing himself has a fool for a client.” It is always better to hire an experienced criminal attorney to help you in any criminal matter. An experienced attorney will help to identify and exploit the weaknesses in the State’s case.
No. Just because you are eligible for probation does NOT mean that you are entitled to probation. Many times prosecutors will not offer you probation and the judge will likely not give you probation. Your lawyer needs to be able to evaluate your case with you and explain to you the likelihood that you will get probation from the Judge or the Prosecutor.
Yes. Texas is one of the few states that give the criminal defendant the option of being sentenced by the court or the jury. If you are found guilty, sometimes only the court can assess probation, and in other cases only the jury can assess probation. Your attorney should be able to evaluate your case appropriately and explain your options to you before you decide whether you want to go to trial and by whom you elect to assess punishment.
First, anytime you are convicted of driving while intoxicated in the State of Texas, you have to complete either a DWI Alcohol Intervention Program or a DWI Alcohol Education Program. So, expect to be setting in a desk somewhere.
Second, what happens to you after you have been convicted of DWI depends upon whether or not you had a child 15 years old or younger in the car with you and whether or not it’s your first time to have a DWI conviction. The amount of jail time and license suspension will vary, as will the amount of the fine.
First DWI Conviction
It’s only a misdemeanor. Better than a felony on your record. You will face up to 3 days in jail – and that can go up to 6 days as the minimum if there was an open alcohol container in the car when you were stopped. Also, you can lose your driver’s license for up to one year and have to pay up to $2000 in fines.
Second DWI Conviction
Still a misdemeanor. However, now you will face up to 30 days in jail plus $4000 in fines and you can have your driver’s license suspended for up to 2 years.
Third DWI Conviction
Be convicted in Texas of driving while intoxicated three times, and you’re over the line into felony on your record. The 3rd conviction brings with it 2 to 10 years incarceration in a prison, not a jail (no longer a misdemeanor here, folks), and the State of Texas can put you up anywhere they see fit. Your loved ones will not have the easy drive down to the jail now; instead, they may have to plan on costly trips to any of the state prison facilities around the Lone Star State.
Fines now increase substantially, as well. Expect to pay up to $10,000 in fines for a 3d DWI conviction, as well as a suspended driver’s license for up to 2 years.
Convicted Anytime With a Child Up to 15 Years Old in the Vehicle
Texas law has a special set of punishments for anyone who is convicted of driving drunk while having a child of any age up to fifteen years old in the car with them. That’s a felony even if it’s the first DWI conviction, and comes with up to 2 years in prison (again, not a jail); a fine up to $10,000; and up to a 6 month suspension of your driver’s license.
DWI Conviction can impact more than one government record that will follow you around as you apply for scholarships, jobs, military service, and the like. First, there is your driving record. Even a misdemeanor (starting with an arrest report) will show up on your driving record and you can expect your insurance company to take notice. Maybe your rates will increase. Maybe your policy will be cancelled. Your driving record, filed in the Texas records under your individual driver’s license number, is important.
However, if you are convicted of driving while intoxicated, you will now have a Texas criminal record even if you are an extremely law abiding citizen who just had one too many at happy hour and got pulled over on the way home. You will be assigned a new, unique number (SID) that identifies you in the Texas Department of Justice databate.
For more information on clearing your records, read about expungement.
Reference: Texas Penal Code Chapter 49
While there are free (and paid) online warrant search web sites, they should not be trusted for their accuracy. Their records may not include all your local jurisdictions, and even if they do, they may not have up-to-date information. The exception to this rule is the search engines provided by governmental entities themselves. For example, the City of Dallas has an online search engine to check for outstanding warrants. In some situations, you may be able to determine online if a warrant has been issued.
To be sure, however, it is best if you enlist the aid of a professional to help you determine if there’s an active warrant. It is possible that a professional bail bondsman will call and check on the status of a warrant for you for free. This will depend in part on where that warrant would be issued (which county) and whether or not that jurisdiction has their information computerized and readily available via a web search or phone call.
If you are concerned about a warrant being issued regarding a serious crime (felony) and believe that you or your loved one is being actively investigated by law enforcement, then remember it is never too early to get a criminal defense attorney on your side. In this instance, take this opportunity to have your criminal lawyer learn whether or not a warrant has been issued. This is particularly important in federal matters, where the procedures are different than state or county protocols.
There is no one answer to this question. Sometimes, you can post bond through a professional bail bondsman if the court has already set bail in your case, and avoid being arrested. Other times, it may be in your best interests to have your lawyer work with you on how best to deal with a pending arrest. Do nothing, and sooner or later, the police will find you to take your freedom as they escort you down to jail. Don’t procrastinate on beginning the criminal defense of your case if you know that there is an active warrant with your name on it.
A “warrant” is a formal authorization to have someone confined behind bars pending a ruling by the court (remanded, released on bail, etc.). They are constitutionally required before law enforcement can exercise its police power, and they must be supported by sworn affidavit that there is probable cause that (1) a crime has been committed and that (2) the individual named in the warrant is the person who committed the crime. Warrants are issued for all types of crimes: unpaid traffic tickets can result in arrest warrants as well as serious felonies.
No Refusal campaigns — instituted by Texas and more and more states across the country — continue to gain popularity among prosecutors. Texas, in fact, is one of the biggest proponents of using No Refusal Weekends as a means to combat the dangers of drunk driving.
Usually instituted over holiday weekends (Memorial Day, the Fourth of July, Labor Day, etc.), a particular jurisdiction – usually a Texas county like Dallas, Harris, Travis, or Bexar – will notify the public in advance of an upcoming “No Refusal weekend,” and institute procedures for intoxication testing over that time period.
During the No Refusal campaign itself, anyone pulled over by law enforcement on suspicion of driving drunk and who refuses a blood or breath test there on the side of the road will be taken to a central location where the No Refusal staff has set up shop. There, form orders and a magistrate or judge await the driver, and an order forcing the blood test (and overruling the driver’s assertions of privacy, due process, etc.) will be signed swiftly. The blood test to determine blood alcohol content will then be taken at the No Refusal site. Usually, all this is being videotaped – from the patrol car dashcam as the driver is pulled over, to the room where the blood is taken and tested.
Under Texas Penal Code §49.01 (2)(b), any driver over the age of 21 years is assumed to be intoxicated if the driver’s blood tests at having an alcohol content of .08% or more. The statute specifically states:
“Intoxicated” means:
- Not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
- Having an alcohol concentration of 0.08 or more.
If the blood test results show alcohol is present in the blood at the amount of .08 percent or higher, then Texas law mandates this single piece of evidence is enough to prove legal intoxication. If the blood test shows a blood alcohol content (“BAC”) of .15% or more, then there are even stricter Texas laws in place. If the driver’s BAC hits .15 percent or higher, the judge can automatically impose very serious penalties upon the driver – without any other evidence.
A bad result in a blood test doesn’t mean that you have no defense to a drunk driving DWI charge. While the Texas legislature has passed laws defining intoxication, the Texas courts also have a thing or two to say about justice in this state. The No Refusal campaigns do not mean that you have no defense against a drunk driving conviction. Consider this: the highest Texas criminal court, the Texas Court of Criminal Appeals (“CCA”), has found that while the BAC blood test is “per se” evidence of intoxication, the defense can present other evidence to the jury in their deliberations of a drunk driving case.
The opinion was handed down in February 2010 in the case of Kirsch v. State (read the full opinion here). The high court refuses to let a single blood test control the lives of Texas drivers – or Texas juries.
Furthermore, in Kirsch v. State, the CCA has ruled that the BAC test is not to be considered “conclusive” of drunk driving, and the prosecution must also provide the jury with proof of things like (1) the test was taken within a reasonable time period after the defendant is shown to have been driving; and (2) there is sufficient supporting evidence that the driver was intoxicated at the time.
In other words, there are cases on the books where judges have found BAC evidence to be probative – but not conclusive. Even a bad BAC during a No Refusal weekend does not mean that you should give up.
In fact, a bad BAC during a No Refusal weekend means that now, more than ever, you need to find an experienced Texas criminal defense attorney to help you fight. A DWI charge can mean jail time, probation, fines, and a permanent impact upon your drivers’ license, driving record, employment and job prospects, etc.
