Yes domestic violence charges very much can affect gun possession and ownership. According to Federal and certain specific State Laws a “conviction” makes a big difference in the outcome. For Federal Law purposes a misdemeanor or felony domestic violence offense needs to be a conviction in order to prevent a person from possessing or owning a firearm.
For state law such as Texas, a completed misdemeanor or felony deferred adjudication probation will not prevent a person from possessing and owning a firearm under state or federal laws.
Domestic violence charges in certain states have court or protective orders, issued after arrest, instructing a person with guns to turn them over to law enforcement for a certain amount of time. The court order may be a temporary time period selected by the judge or the uncertain time period until the case is finally resolved.
The Gun Control Act of 1968
The importance of understanding this Gun Control Act of 1968 is what was going on at the time. Martin Luther King and Robert Kennedy had just been assassinated causing control activist to push for action. There was a popular need to more accountability and controlling who were allowed to get guns. Minors, drunk, mentally ill people, and convicted felons were being banned from gun possession.
The Lautenberg Amendment and Misdemeanor Domestic Violence
In the fall of 1996 a new amendment was introduced and passed almost unanimously. The Lautenberg Amendment amended the Gun Control Act of 1968 by including the ban of firearms by individual convicted of misdemeanor domestic violence. This includes receiving or possession firearms. This is the federal law on the matter and the determining factor describing that a misdemeanor domestic violence conviction makes a person ineligible to have a firearm.
What is the Texas Firearm Law and a Domestic Violence Conviction?
Texas has a law Unlawful Possession of a Firearm Tx Penal Code 46.04. This law allows a person convicted of a misdemeanor assault involving family violence to possess a firearm 5 years after the release from confinement or community supervision for a conviction.
This is not what the federal law says and does not protect someone from prosecution under the federal law discussed above. In these cases federal law often defers to the state to enforce their own law, but it is not a guarantee. Remember the Federal Law prohibits misdemeanor domestic violence convicts specifically from possessing or owning firearms.
Can I Own a Gun After Completing Deferred Adjudication Probation?
Yes. You can own a gun after successfully completing deferred adjudication probation. This probation, if completed successfully, is not a conviction. Title 18 U.S. Code § 922 specifies that a person convicted in any court of a misdemeanor crime of domestic violence shall not possess any firearm or ammunition.
Texas Concealed Carry and Domestic Violence
The law for attaining a Texas ‘License To Carry‘ (LTC) is different than for a person merely in possession or ownership of a firearm in Texas. Texas has changed what used to be a Concealed Handgun License (CHL). Texas now is an open carry state. A person must wait 10 years from the date an order of Deferred Adjudication was entered against the person. But depending on what the person was placed on deferred adjudication is a very important factor on qualification of a Texas LTC.
The following offenses disqualify a person from a License To Carry in Texas even if placed on Deferred Adjudication:
Homicide
Kidnapping
Trafficking a Person
Sexual Offenses
Assault Offenses (this includes Domestic Violence)
Burglary of Habitation with Intent to Commit a Felony Other Than Felony Theft, or Committed a Felony Other Than Felony Theft
An offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense listed above.
A LTC application will be rejected if the applicant is “currently restricted under a court protective order or subject to a restraining order affecting the spousal relationship, other than a restraining order solely affecting property interests.”?
Can I Get My Texas Gun Rights Restored?
Texans can apply to get their gun right restored by filling out a Restoration of Firearms Rights application. This application will not be accepted without a Governor’s Grant of a Full Pardon as well. This pardon application will need to be mailed to the Texas Board of Pardons and Paroles.
§143.12. Restoration of Firearm Rights The board will consider recommending restoration of the right to receive, possess, bear, and transport in commerce a firearm only in extreme and unusual circumstances which prevent the applicant from gaining a livelihood, and only if the applicant: (1) provides either proof of clearance by a previously granted full pardon or a request for such express restoration in a pending application for a full pardon from jurisdiction(s) of the relevant conviction(s); and (2) provides proof of application under the United States Code, Title 18, §925(c), for exemption, relief from disabilities to the attorney general, and furnishes copies of all relevant applications and responses thereto by the attorney general including any final actions by said attorney general.
A full pardon restores the right to vote, hold office and serve on a jury. It does not automatically restore the right to bear arms. Before possessing a firearm a person will want to check with the Federal Bureau of Tobacco and Firearms and the Texas Department of Public Safety.
A full pardon does not expunge a person’s criminal records for the incident. An expungement needs to be filed in a district court of the county of conviction.
I’m Married to a Felon, Do I have to Get Rid of My Guns?
This same scenario can apply to being married to a person convicted of domestic violence. The question revolves around who has possession of the firearms during the prohibited period. The felon or person with domestic violence on their record needs to protect themselves in a situation where they may be accused of illegal possession of a gun or guns. The safest and most obvious way would be to not have guns in the home. This may not be possible. Another option would be a gun safe where only the spouse or roommate has access into the safe and legal access to the guns.
This principle can apply to not only spouses but relatives staying in the home, roommates and tenants. A person who is legal to own gun can have them.
A gun owner needs to always be careful who has access to their guns regardless. A gun owner who is reckless and lets a dangerous or irresponsible person gain access to their guns can bring questions of liability or blame on themselves to answer for later.
What Do I Do With My Guns When a Protective Order is Issued Against Me?
Some jurisdictions will order a gun owner to surrender his or her guns to a nearby law enforcement agency to hold while a protective order is pending. The time period may vary. Once the gun owner wins the case or otherwise feels entitled to the possession of the guns a motion can be filed in the court that the protective order or domestic violence case is pending.
Do My Juvenile Records Prevent Me From Owning a Firearm?
Most likely juvenile records will not affect a person as an adult. The records become sealed. The exception to this would be if the juvenile had been certified to stand trial as an adult, was placed on a determinate sentence probation, committed to TJJD with a determinate sentence, or has a continuing obligation to register as a sex offender.
A juvenile’s records in most cases are sealed 2 years after discharge from probation or the last action of a case. Also, it may be at 19 years of age if never certified as an adult and no pending case or felony convictions in adult court.
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There are certainly ways to have a case against you dismissed. The case is only as good as the evidence gathered while investigating the accusation. Much of the evidence used in these cases is what the police gather almost immediately upon arrival. This includes 911 calls, photos, video, witness statements, medical treatment for injuries and most importantly what the victim says happened to her or him. This does not mean everything said to the police in the heat of the moment is true. Sometimes clarification is needed to supplement the investigation when people cool down later.
How are domestic violence cases handled in Texas?
The police are usually called via 911 by a victim or a neighbor. Most of the cases I handle involve a shouting match over something minor resulting in tempers flaring. A domestic violence issue can be between roommates, spouses, boyfriend-girlfriend or parent-child. Commonly there might be a shoving match and someone calls 911. The police arrive and separate the parties and gather information on what took place. They take photos in addition to what is recorded on a body camera that the police wear. There may be dash camera evidence including verbal statements. The police will usually arrest one of the people if there are injuries that resulted in pain. The arrested person can bond out in a day or two depending on whether a protective order is issued. The victim can request a P.O. which will require the alleged accused person to live somewhere else until the expiration of the P.O. of not less than 31 days.
Can you change your mind about pressing charges in Texas?
For the victim who wishes to change their mind about pressing charges, this is certainly an option. It does not meant that the prosecutors will automatically drop the case in court. Hearsay exceptions allow the victim’s statements immediately after an incident to be used as excited utterances in trial without the victim being required to testify.
A victim can have their wish to drop charges made known to the prosecutors office in the form of an affidavit of non-prosecution. They usually would fill out the particular Texas county prosecutors office form for this purpose at the prosecutor’s office in the county where the incident occurred.
How do I drop charges in TX?
As mentioned above the affidavit of non-prosecution is an avenue for the alleged victim to formally let the prosecution know the victim does not want to pursue charges against the accused. Once charges have formally been filed against a defendant the victim cannot do much to the stop the prosecution. Possibly there are more facts that need to be forwarded to the prosecution that may have been overlooked in the initial investigation. An experienced defense lawyer can help make this happen. Sometimes it involves a private investigator.
How long does an assault charge stay on your record in Texas?
An assault conviction stays on a person’s record forever. A conviction is a permanent resolution where a person pleads or is found guilty and gets either jail time or regular probation. This is the case whether it is a misdemeanor or a felony. It would at least be better to get deferred adjudication probation in order to avoid a conviction. A family violence conviction prevents someone from owning a firearm under federal law.
How long can you press charges after assault in Texas?
A victim can try and file charges up until the statute of limitations. This becomes a problem as more times goes by. A credible person would probably not wait a long time to press charges. This is not always true. But there will be questions about why it took so long to file assault charges if it really happened as the alleged victim claims. Misdemeanors have a 2 year statute of limitations. Felonies S.O.L. are longer starting at 3 years.
What are the domestic violence punishment ranges in Texas?
Texas has a class C assault which is assault by contact with no pain. The next level of assault is Class A misdemeanor. Subsequent assaults and more serious injuries or including weapons are usually felony level. For more information on punishment range in Texas take a look at this article, Texas punishment ranges.
Does the victim have to testify in a domestic violence case in Texas?
No witnesses can be forced to speak at trial. They can be subpoena’d and forced to attend. That usually does not happen. The prosecution has the ability to get hearsay exceptions into trial evidence that were given by the alleged victim at or near the time of the incident. It does help if the victim testifies. Most people would like to hear from a victim in order to decide if they believe the accusations.
When a person asks about the repercussions of a DWI in Texas 3rd offense, unfortunately, it means that they already have had previous DWI convictions beginning with a DWI 1st conviction. Then a DWI 2nd conviction. A 3rd DWI conviction can result in a prison sentence of up to 10 years and a $10,000 fine.
DWI in Texas First Offense
A person really wants to avoid the first offense with a strong desire. Once a DWI first offense gets on a person’s record, it follows them around forever. It makes it very difficult to avoid subsequent DWI convictions if later drunk driving charges come up.
DWI in Texas 2nd Offense
Once charged with a 2nd DWI in Texas a person will need to bond out of jail. Typically the average bail amount for a 2nd DWI is $2,000 to $5,000 depending on the circumstances of the arrest. In Texas, it is mandatory to have an ignition interlock device on a person’s vehicle during the whole time while on bond for a 2nd or subsequent DWI charge.
Texas Bail Bondsman
The bail amount is fairly standardized in each county and will vary. An accident, among other factors, can affect the amount of bond and bond conditions. Once on bond, there will be requirements to complete which is a topic for another post. The court process will take some time to get started. The police will turn in their case to the prosecutor’s office, which is the district attorney or county attorney depending on which Texas county the arrest occurred in. The case will then need to be heard by a grand jury who will either true bill or no bill the case. A true bill means at least 9 of the grand jurors found the evidence sufficient for the charge to be indicted. Whichever court will have the case may have been already been requiring periodic appearances. But once the case is indicted court appearances will begin soon after.
Criminal Defense Lawyer
Hopefully, by now, the driver has hired a criminal defense lawyer. With DWI cases, there is a separate drivers license issue that needs attention from a skilled DWI attorney. But with that issue aside, the best drunk driving lawyers would have already been collecting evidence to begin setting up his or her case. There may be breath or blood test evidence that needs to be investigated as well as possibly an accident reconstruction investigation. The court appearances will be where most of the discussion and negotiating takes place between the defense lawyer and the prosecutor.
3rd DWI in Texas Probation
The punishment for a DWI 3rd can be up to 10 years probation or possibly prison time. A major factor during plea negotiations is whether the person has much criminal history on their record. More specifically, the number of previous DWI convictions and also how recent they are. If there are already non-DWI felony convictions on a person’s record, it can be a problem during negotiations as well. If the prosecutor refuses to offer probation and only a prison sentence, the other option is to have a judge or jury decide. This may require a jury trial or a bench trial in front of the judge.
Can a DWI Be Dismissed in Texas?
While working up the case and examining the evidence, the defense attorney may discover problems with the evidence. There is critical evidence that needs to be proven by the state. The first important factor would be whether the person is the driver and whether they were actually operating the vehicle while intoxicated. Other important issues are whether the breath or blood test concludes intoxication. Just because there is a breath or blood test, does not mean it was conducted properly and should be trusted.
Reckless Driving Texas
The next best thing to winning a DWI case in trial or getting is dismissed is getting a DWI reduced to another charge such as reckless driving. Reckless driving is a misdemeanor and has far less negative implications than a DWI conviction. In order to get this charge, the DWI case needs to be dismissed and refiled as a reckless driving charge in court. It takes a diligent and knowledgeable DWI attorney to study the evidence in order to negotiate a reduction in the case.
DWI in Texas 2nd Offense
Another factor in negotiations is to try and reduce the case to a level where it is not a felony conviction. This is a comprise where the driver avoids a felony and the state still gets a conviction for future use if another DWI case should take place. A felony can be very detrimental for certain jobs and employment licensing.
Blood Alcohol Level in Texas
Another factor in negotiations is the blood alcohol level of the driver. If a breath or blood test was done, it will usually produce a test result with the alcohol level at the time of the test. The state will then make some assumptions about what the test was at the time of driving based on observations, time passed, and questions answered by the driver to the police. In Texas, the legal limit is .08 at the time of driving. An extremely high blood alcohol test can complicate plea negotiations for the best possible outcome for the driver. There is another way to prove the case without an amount based on loss of mental or physical faculties. This route is a much more vague way to prove the case of intoxication. There are many non-intoxicating factors that can cause a person to appear intoxicated when they are not.
How Much Does a DWI Cost in Texas?
Each lawyer has their own fee that they think is a fair charge for their services. But the cost for a felony DWI will run several thousand dollars in most cases beginning with a bondsman charging 10 percent. There will usually be other bond condition fees such as the ignition interlock device cost. This is a mandatory bond condition in Texas starting with a DWI 2nd offense charge. The monthly bond supervision fee can be around $60 per month paid usually to the probation department. Once the case is over, there will be court cost and fines. These fees will not apply if the case is dismissed or there was an acquittal by a judge or jury. But if there is an agreement in court or a verdict, the court costs can be as much as $500 and a 3rd-degree felony fine up to $10,000. The dollar amount of a DWI can really vary in range.
Racing on Highway is a crime defined in the Texas Transportation Code Chapter 545.420. It has the potential of serious punishment including jail time and fines. This means under specific circumstances a person could go to jail for 20 years and have a $10,000 fine for this offense.
What is Texas Street Racing?
A person participates in:
A race
A vehicle speed competition or contest
A drag race or acceleration contest
A test of physical endurance of the operator of a vehicle, or
In connection with a drag race, an exhibition of vehicle speed or acceleration or to make a vehicle speed record
What Happens if You Get Caught Street Racing?
A first offense is a Class B misdemeanor with up to 6 months in jail and up to a $2,000 fine. Probation up to 2 years is also a possibility.
It is a Class A misdemeanor with up to a year in jail and $4,000 fine if:
Previously convicted 1 time of the same offense, or
At the time of the offense was operating the vehicle while intoxicated as defined in Texas Penal Code Ch. 49.01, or
At the time of the offense was in possession of an open container as defined by Texas Penal Code Ch. 49.031
It is a state jail felony with a range from 180 days to 2 years in jail and up to a $10,000 fine or up to 5 years probation if:
Previously convicted 2 times of the same offense
Its is a 3rd degree felony with punishment from 2 to 10 years and up to a $10,000 fine or up to 10 years probation if:
An individual suffered bodily injury
It is a 2d degree felony punishable from 2 to 20 years and up to a $10,000 fine or up to 10 years probation if:
When a driver is conviction of Racing on Highway in Texas, the Texas Transportation Code Chapter 521.350 determines that a driver’s license will be suspended for 1 year.
The person is eligible to receive an occupational license. If a person younger than 18 receives an occupation license, it is only authorized to be used for driving to school and home.
A person shall perform 10 hours of community service, which is required by the Texas Transportation Code. This is in addition to community service that is ordered under the court’s community supervision sentence. If the person is a resident of Texas without a license, the person will not be permitted to obtain a Texas driver’s license until the 10 hours of community service is completed.
A driver can complete the 10 hours of community service before the suspension period is up and apply for an early license reinstatement with the department.
What Happens if I Get Caught Driving During Suspension Period?
A person convicted of Driving While License Invalid under Ch 521.457 of the Texas Transportation Code, for driving during a license suspension for Racing on Highway, will have a 1 year license suspension from the conviction date of the DWLI. This is in addition to penalties related to the DWLI punishment. The department will not allow the driver to reinstate the driver’s license early.
A) two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other; or
(B) one or more vehicles over a common selected course, from the same place to the same place, for the purpose of comparing the relative speeds or power of acceleration of the vehicle or vehicles in a specified distance or time.
What is Racing?
Race is defined the use of 1 or more vehicles in an attempt to:
(A) outgain or outdistance another vehicle or prevent another vehicle from passing;
(B) arrive at a given destination ahead of another vehicle or vehicles; or
(C) test the physical stamina or endurance of an operator over a long-distance driving route.
Can My Car Be Seized?
Yes. If there is an accident with property damage or personal injury, a peace officer shall require the vehicle taken to the nearest licensed vehicle storage facility. That is unless it is seized as evidence, in which case it can be taken to the officer’s designated storage facility. The driver is liable for all removal and storage facility fees to the facility before retrieving the vehicle.
Why Should I Hire Attorney Eric Torberson?
This criminal offense has serious consequences and to the prosecutors, presents a real danger to society. It is important to get an attorney who really cares about their clients. I handle every one of my cases with care and importance. It is extremely important to avoid a conviction for Racing on Highway. Call me or visit my website as soon as possible so I can get started. http://erictorberson.com
What Happens When You Interfere With an Emergency Call?
Our experience is is that in the heat of the moment and tempers are high a real or not so real need to call 911 arises. The non-calling person knows that this will cause the police to be called to the house or current location. Sometimes a person grabs the phone away from the caller and hides it. Sometimes the phone is damaged by being thrown on the floor or against the wall. Like most statutes, emergency is defined as “a condition or circumstance in which any individual is or is reasonably believed by the individual making a call or requesting assistance to be in fear of imminent assault or in which property is or is reasonably believed by the individual making the call or requesting assistance to be in imminent danger of damage or destruction.” It’s considered an offense if the “individual recklessly renders unusable an electronic communications device.” So it does not necessarily have to be a phone.
Is Interfering With a 911 Call a Felony in Texas?
The short answer is no. It will be a Class A Misdemeanor -Texas unless a person has been previously convicted of interfering with an emergency call.
Sec. 12.21. CLASS A MISDEMEANOR. An individual adjudged guilty of a Class A misdemeanor shall be punished by:(1) a fine not to exceed $4,000;(2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement.
Has There Been a Prior Conviction for Interfering with Emergency Call?
Interference With Emergency Request for Assistance Texas Now What?
The cases are not alway cut and dried. Seeking experienced legal counsel is the first and most important action to take. Call or contact https://www.erictorberson.com for excellent legal advice. When issues settle down and the smoke clears, often there is a clear road to a resolution that will save a person’s future.
How Do Stop Someone From Needlessly Calling 911?
The short answer is that you do not if you don’t want to go to jail. Beating the case later in court is a different story. For instance if the caller is hypothetically hallucinating on drugs and thinks you are attacking him or her and you are not, then it would not be a reasonable belief by the individual that they need emergency help. That really will not save a person from going to jail for the night in a lot of cases, unless the officers are experienced and patient in their investigation. They may even need to have dealt with this household or person in the past to know of the unreasonable beliefs.
Does It Help That I’m Still With My Spouse or Significant Other After Interference with Emergency Communication?
Yes. The alleged victims stance on the matter is important going forward. The case will most likely be set in court for a while and the current relationship can help the case turn out in a more positive manner. The charge of interference with emergency telephone call is not the end of the world and can be work out for the accused.
When it comes to navigating the legal area surrounding Driving While Intoxicated (DWI) cases in Giddings, Texas, you need a lawyer who understands the law and can advocate for your rights. Attorney Eric Torberson, a seasoned DWI lawyer, is committed to providing legal support, ensuring that you have the best possible defense.
Understanding Giddings DWI Laws
Giddings DWI
Giddings, Texas, has DWI laws designed to maintain public safety. Understanding the legal framework is crucial for building a defense. Eric, being an experienced DWI attorney, is well-versed in these laws, ensuring that he can craft a defense for your unique situation.
Consequences of a DWI Conviction
A DWI conviction in Giddings can have severe consequences, including fines, license suspension, and even jail time. A Giddings DWI lawyer is dedicated to mitigating these consequences, leveraging their expertise to explore every legal avenue and secure the best possible outcome for our clients.
Why Choose Eric?
Proven Track Record
Eric Torbeson’s track record speaks for itself. He have successfully represented numerous clients facing DWI charges in Lee County, Texas earning a reputation for excellence in the legal community. His results-driven approach and commitment to our clients set us apart as the go-to choice for those in need of a skilled DWI defense lawyer.
Exceptional Experience
With a deep understanding of Giddings DWI laws. We combine legal expertise with a strategic mindset, ensuring that no stone is unturned in building a defense. When you choose Eric, you’re choosing a team that is dedicated to protecting your rights and securing your future.
Driver License Hearing
The Department of Motor Vehicles (DMV) hearing is a critical aspect of a DWI case. A competent Giddings DWI attorney is well-versed in drivers license procedures, using his knowledge to challenge license suspensions and fight for your driving privileges.
Court Proceedings
Eric’s courtroom experience are unmatched. He approaches court proceedings with a strategic mindset, presenting compelling arguments and leveraging our knowledge of Giddings DWI laws to build a defense. Whether negotiating a plea deal or taking your case to trial, he is relentless in the pursuit of justice.
Client Testimonials
Satisfied Clients Speak
“Choosing this legal team was the best decision I made during a challenging time in my life. His dedication, expertise, and unwavering support made all the difference in securing a favorable outcome for my DWI case.” – John M.
“I cannot express my gratitude enough for the exceptional legal representation I received. The team’s attention to detail and commitment to my case were evident from day one. Highly recommended!” – Sarah T.
Contact Today
If you find yourself facing DWI charges in Giddings, Texas, don’t leave your future to chance. Eric’s knowledge as a DWI lawyer makes him ready to stand by your side, providing the legal guidance and advocacy you need. Contact him today for a confidential consultation and take the first step towards securing your rights and your future. Take a look at Giddings Texas Defense Attorney
Legal challenges can cast a shadow over anyone’s life, and when it comes to navigating the complexities of the legal system in Giddings, Texas, having seasoned criminal defense attorneyEric Torberson by your side is not just an option; it’s a necessity. In this article, we delve into the unparalleled legal expertise offered by the Giddings, Texas Criminal Defense Attorney, highlighting the key facets that set us apart in providing top-notch legal representation.
Unmatched Experience in Giddings Jurisprudence
Our team boasts a wealth of experience in Giddings and the surrounding areas, with an in-depth understanding of the local legal landscape. Navigating through the intricate web of Giddings’ legal system requires more than just legal knowledge; it demands an intimate familiarity with the local nuances that can significantly impact the outcome of a case.
Expertise in Diverse Criminal Defense Areas
Drug Offenses
When facing drug-related charges, having an attorney who is well-versed in the ever-evolving landscape of drug laws is crucial. Our Giddings-based legal team specializes in defending clients against drug offenses, leveraging a nuanced understanding of both state and federal regulations.
Assault and Violent Crimes
In cases involving assault and violent crimes, our defense strategies are tailored to the unique circumstances of each case. We understand the importance of a swift and strategic defense to protect the rights and interests of our clients.
DWI and Traffic Offenses
Navigating the legal repercussions of DWI and traffic offenses can be daunting, but with our Giddings Criminal Defense Attorney, you gain access to a team that excels in crafting effective defenses to mitigate the impact of these charges.
Client-Centric Approach
At the heart of our practice is a commitment to putting our clients first. We recognize the stress and uncertainty that legal matters bring, and our team strives to provide not just legal representation but also emotional support throughout the legal process.
Tailored Legal Strategies
Understanding that no two cases are identical, we adopt a personalized approach to legal representation. Our Giddings Criminal Defense Attorney carefully assesses the specifics of each case, tailoring our strategies to achieve the best possible outcome for our clients.
Transparency and Communication
In the legal realm, communication is paramount. We pride ourselves on maintaining open lines of communication with our clients, ensuring they are well-informed about the progress of their case. Our commitment to transparency builds trust and empowers our clients to make informed decisions.
Success Stories That Speak Volumes
Our track record of successful case outcomes stands as a testament to our unwavering commitment to excellence. We have successfully defended numerous clients in Giddings against a spectrum of criminal charges, earning a reputation for being formidable advocates in the courtroom.
Navigating the Legal Landscape with Confidence
Legal challenges can be overwhelming, but with the Giddings, Texas Criminal Defense Attorney at your side, you can face them with confidence. Our comprehensive legal expertise, client-centric approach, and proven track record position us as the go-to legal team in Giddings and beyond.
If you find yourself in need of unparalleled legal representation, don’t settle for anything less than the best. Contact Giddings, Texas Criminal Defense Attorney Eric Torberson, and let us navigate the legal landscape for you.
Traffic tickets can be annoying as we all know. Do not ignore them. I frequently get calls about people unable to renew their driver license because of traffic tickets. You want to keep them off of your record. A conviction stays on your record forever. Some courts will look for other tickets on your record and make worse offers to resolve subsequent tickets. Call for more details.
As a Texas DWI lawyer I know it is a legal professional that specializes in defending individuals charged with Driving While Intoxicated (DWI) offenses in the state of Texas. DWI is a serious offense, and a conviction can lead to significant consequences, including fines, license suspension, probation, and even jail time. DWI lawyers are experienced in handling these cases and are familiar with the specific laws and procedures related to DWI charges in Texas.
Here are some of the key roles and responsibilities of a Texas DWI lawyer:
Legal Representation: A Texas DWI lawyer provides legal representation for individuals charged with DWI, guiding them through the legal process and advocating for their rights.
Case Assessment: The lawyer will review the details of the DWI case, including evidence, police reports, and witness statements, to assess the strength of the prosecution’s case and identify any potential weaknesses or defenses.
Legal Advice: DWI lawyers offer legal advice to their clients, explaining the charges they are facing, the potential consequences, and the available legal options.
Defense Strategy: Based on the circumstances of the case, a DWI lawyer will develop a defense strategy to challenge the prosecution’s evidence and protect their client’s interests.
Negotiations: In some cases, a DWI lawyer may negotiate with the prosecution to seek reduced charges or penalties through a plea bargain.
Court Representation: If the case goes to trial, a Texas DWI lawyer will represent their client in court, selecting a jury, presenting evidence, cross-examining witnesses, and making legal arguments on their behalf.
Expert Witnesses: In certain situations, DWI lawyers may consult with or call upon expert witnesses, such as forensic toxicologists or accident reconstruction specialists, to support their defense.
License Issues: DWI lawyers can also assist with matters related to driver’s license suspension or help their clients obtain an occupational driver license if necessary.
It’s important to know that DWI laws can be complex and vary by state. If you are facing DWI charges in Texas, it is crucial to consult with a qualified and experienced DWI lawyer who is familiar with the specific laws and procedures in Texas. An experienced lawyer can provide the best chance of building a strong defense and minimizing the potential consequences associated with a DWI conviction.
Remember that finding the right DWI lawyer is crucial to building a strong defense. Take the time to research and choose a lawyer who has experience and a track record of success in handling DWI cases in Texas.
An assault family violence or domestic violence lawyer is a legal professional who specializes in handling cases related to domestic violence. Domestic violence involves behavior or violence that occur within a household or an intimate relationship. Defense lawyers are experienced in advocating for clients charged with domestic violence, in other words, defending individuals accused of domestic violence.
Here are some of the typical roles and responsibilities of a domestic violence lawyer:
Legal Representation: A domestic violence lawyer can represent victims of domestic violence seeking protection orders or pursuing legal action against their abusers. On the other hand, they can also defend individuals who have been accused of domestic violence.
Protective Orders: On the other side prosecutors help victims obtain restraining orders, protection orders, or orders of protection to ensure their safety and keep the abuser away.
Legal Advice: Domestic violence lawyers provide legal counsel, guiding them through their legal options and helping them understand their rights.
Evidence Collection: For both victims and defendants, domestic violence lawyers gather evidence to support their case, such as medical records, witness statements, or police reports.
Court Representation: Domestic violence lawyers represent their clients in court, presenting their case, questioning witnesses, and arguing on their behalf.
PleaNegotiations: In some instances, domestic violence lawyers may engage in negotiations with the opposing party to reach settlements or plea bargains.
Crisis Intervention: For victims, domestic violence prosecutors may offer emotional support and connect them with resources like shelters, counseling services, and support groups. Prosecutors can also help detect whether the victim is being honest.
Education: Domestic violence lawyers may conduct educational outreach about domestic violence laws and resources available to victims in the community.
It’s essential to seek a qualified and experienced domestic violence lawyer if you are involved in a domestic violence or assault family violence situation, either as a victim or an accused party. These legal professionals can offer vital assistance, protection, and guidance through a challenging and sensitive legal process.
No. A DUI in Texas can only be a minor, under 21 years old, with any detectable amount of alcohol in their system. A DWI in Texas is anyone with .08 or above blood alcohol content and/or drugs causing intoxication.
What is the average cost of a DUI in Texas?
Since every lawyer charges differently I will just refer to the DUI fines and court costs. The fine can be up to $500 for a DUI with no priors and court costs are around $100. Any classes that may be taken will cost for enrollment. The big cost
Do I need a lawyer for a DUI in Texas?
It is advisable to let a lawyer trained to handle these matters help you through the process. A person not knowing court room procedures or how to negotiate will not be as effective to achieve a positive result to his or her case.
Can I get a DUI dismissed in Texas?
Yes. The first thing I look at is if the police stop legal. There has to be probable cause to stop a car. Next question is does the under 21 driver have any amount of alcohol in their system. Sometimes there is no proof other than the officer saying they smell alcohol. It can be difficult to disprove this if the officer never tests the driver for alcohol through field sobriety tests or breath/blood test. This happens in quite a few cases where only smell is alleged. Sometimes the driver admits to drinking earlier but the alcohol may have already eliminated from the person’s system.
How do I keep a DUI off my record?
There are programs such as deferred disposition where the driver can take an alcohol awareness class and/or community service and after 3 or 6 months the case will be dismissed. Many times these are reserved for people with no criminal background but not always. Other factors may play a difficult role in qualification such as a car accident, drugs in the car, behavior while being questioned and other relevant factors.
How much is a DUI lawyer in Texas?
As I stated earlier a Driving Under the Influence is different than a Driving While Intoxicated. A DUI is a class C misdemeanor in Texas. Of course every lawyer will have their own fees, but a DUI is not quite as serious as a DWI which start at class B misdemeanors.
There are a few different options to get out of a ticket in Texas. If you qualify for defensive driving and desire to take defensive driving, that is one way. Another option is to request a judge or jury trial and show up to the trial date to fight the ticket. You will need to be more convincing to the judge or jury than the officer. If the officer does not show up many times the ticket will be dismissed by the prosecutor. It is not a guarantee, they may try to postpone, or continue, the trial to another day.
What to say to a cop to get you out of a ticket
Police are human beings with good and bad days. They run into all sorts of people, kind, rude and everything in between. Your chances of getting a warning instead of a ticket are greatly reduced if you are rude. Becoming defensive and angry on the roadside will almost guarantee a traffic ticket is coming your way. My personal experience is that I smile and say hello when the officer walks up to my window. I hand my license and insurance over. One time the officer gave me a warning. My second speeding stop several years later I was given a regular speeding ticket instead of a construction zone speeding ticket. That break allowed me to get the ticket dismissed and keep it off my record. Construction zone tickets in Texas are not supposed be allowed to do defensive driving.
Can I just pay my ticket and not got to court?
Yes, paying a ticket is permissible but it will stay on your record. Insurance companies look at a driving record as far back as 5 years and charge accordingly to higher risk drivers.
How to get old tickets dismissed in Texas
It is helpful to have a lawyer deal with this. I just got about 20 tickets dismissed recently for a client in Hays County, Tx. The tickets were over 10 years old. My client skipped out and moved out of state. The problem he was having is that he could not renew his Texas Driver License until the tickets were resolved. Resolving the tickets allowed the Omni with the DPS to be removed from his license. I negotiated that he pay the $30 per ticket Omni fee on just 4 of the several tickets. This saved my client several hundred dollars.
How long do unpaid traffic tickets stay on your record in Texas?
They stay forever or until resolved. The Omni fee is sent to the DPS by the court and a person cannot renew their driver license until the omni is lifted. That will not happen until the ticket is resolved at the court. The court will then send the Omni release to DPS after a $30 fee is paid to the court.
How do I check if I have a suspended Texas License?
If you think you missed court for a ticket you can check this following website https://www.texasfailuretoappear.com/search.php With your license number and date birth any tickets that are held in omni status can be found here.
How do I get rid of traffic warrants in Texas?
When I do a letter of representation to a court they put the case on a docket. This allows me to negotiate with the prosecutor. Once we get the case set for a resolution (which includes the fees, fines, and/or restitution)I discuss the terms with my client. I am usually able negotiate a favorable resolution for my clients. Older cases can have advantages because witnesses are usually long gone and unavailable.
Getting your Texas driver license back will depend on the reason it is suspended. In the mean time you can get an Occupational Driver License. This is not the same as a hardship license in Texas. Those are utilized by teenagers prior to being licensed.
How do I get my license reinstated?
Sometimes it is as simple as paying a reinstatement fee. For someone arrested for DWI or DUI in Texas, their license likely was suspended for a period of time. For a minor (under 21) first time DUI or DWI it would be 60 days. The minimum suspension for an adult charged with DWI is 90 days if a voluntary breath or blood test were administered. A $125 reinstatement fee is paid to the Texas DPS here below.
Generally a reinstatement fee is $125. There is a small fee if using a card to pay it online. If there is an occupational license getting filed there is also a $10 fee for that per year that it is active.
Can you check to see if your license is suspended in Texas?
We do occupational driver license’s in Texas. You will need to have SR-22 insurance either through your current insurance or another insurance company. The occupational license will only be valid with SR-22 insurance on file with the DPS. Also a driver must order a Type AR Certified Abstract of Driving Record. A petition and order is then filed with a court and a judge must sign the order for the license to become valid. Once approved and signed, the order is certified at the clerk’s office and sent to the DPS with the $10 occupational license fee. Certain details in the petition will vary depending on the reason for the driver license suspension.
How much can I drive with an Occupational Driver License?
The statute allows 4 hours of driving every 24 hours. This can be expanded to 12 hours every 24 hours with a showing of necessity. The signed order must include:
the hours of the day, days of the week allowed driving
the reason the driver is driving
the areas or routes of travel permitted
the person is restricted to a vehicle with an ignition interlock device if required
If there was a DWI involving involving alcohol an ignition interlock device may already be installed on the vehicle. The good news is that this will help expand the hours and routes a person will be able to drive. The occupational license will be valid 24 hours and anywhere in the state.
How much is an occupational license in Texas?
The fees for a Texas Occupational License vary depending on what caused the driver license suspension. Contact our office to get a quote. Below are some estimated costs involved:
Reinstatement fee to DPS $125
SR-22 $100/mo
Order driving record $20
Court filing fee $50-$300
Attorney fee-call or message us it depends
Ignition interlock device $100/mo
Ignition interlock device fee to DPS $10
Occupational license fee to DPS $10
Can I get an occupational license for a CDL?
Sec. 521.242 of the Texas Transportation Code prevents a CDL driver from operating a commercial vehicle with an occupational license.
Robbery in Texas occurs when committing theft with intent to maintain control of the stolen property while intentionally, knowingly, or recklessly causing bodily injury to another.
Robbery can also be intentionally or knowingly threatening or placing another in fear of imminent bodily injury.
It is not advisable to fight a DUI or any criminal charge in court without a lawyer. But since you are reading this there must be a financial or other reason that you are choosing not to hire a legal counsel. Depending on the circumstances and how honest the prosecutor is, there may be a chance.
Why is the Fourth Amendment Important?
The very first issue you need to look at in a case is why were you stopped or detained? The Fourth Amendment protects people against illegal search and seizure.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
The police need reasonable suspicion or probable cause to stopped a vehicle for instance. If the police do not have a good reason than the case is already bad and should be dismissed. It may take a trained lawyer to discovery whether there is a 4th amendment violation unless it is blatantly obvious.
If the prosecutor does not dismiss the case when there is an obvious 4th amendment violation then a person representing themself (pro se) has a big problem. There is an integrity issue with the state and a need for legal counsel to file the proper motion to suppress. This red flag may also mean there are other issues being hidden from the accused. This really exists in our courts to this day.
The Police Didn’t Read Me My Rights
The police did not read me my rights-So is my case dismissed? Not necessarily. The police only have to read a person their rights if the person is not free to leave or under arrest. So in DUI and DWI cases the police in Texas consider it being ‘detained’ when they are asking initial roadside questions. But for certain once the handcuffs are on and a person is told they are being placed under arrest, that is when the miranda rights come into play. Although a driver is not free to leave when the police are asking roadside question, there can be a gray area. This is where a good lawyer will research the issue. It can be complicated and beyond this blog post, but there might be a miranda violation without being arrested.
What Evidence Does The Prosecutor Have?
It’s if very important to know what evidence you are entitled to. This is pretty much all of the evidence that exists. But in most cases you have to properly ask for it. Being a pro se defendant many jurisdictions will not give it to you and will make you come into the office at a prescribed time and view the evidence. A pro se defendant needs to know what to ask and look for with the evidence. There are police reports, breath or blood test, audio, video, photos etc.
Can You go to Trial Without a Lawyer?
If it wasn’t already tough up to this point, it can definitely be as a pro se in trial. Even an attorney gets nervous in trial. Picking a jury can be difficult and knowing how to present questions to the jury panel. The state is already experienced at least a little in this area. The accused needs to do some research about how jury selection (voir dire) takes place. Maybe ask a local lawyer for advice and get the jury questionnaires ahead of the day for trial if possible to study the jury panel.
Knowing what questions to ask witnesses is very important. Also knowing what questions the state cannot ask can be equally as important. The other lawyer will try to lead their witness into saying a lot more than allowed, including hearsay statements.
It is important to know that the accuse has a right not to testify. This should have been talked about in jury selection. Some people just presume guilt when a person remains silent and does not tell their side of the story. But there are reasons, other than guilt, why a person does not testify.
Closing argument finishes up the trial where the parties summarize their side of the case. There are time limitations and limits to what can be said about the case. One thing for sure, it is not a time to leave the jury with a bad impression.
Conclusion
This only covers a fraction of the issues about a criminal case such as a DUI or DWI. If an accused person just cannot afford a lawyer there are court appointed lawyer options for most indigent people. If that is not an option, or the court appointed lawyer will not go to trial, a pro se trial is a last resort. Most lawyers will take a few minutes to explain how a trial works. It is worth a phone call to attempt to ask a few questions. If you have more questions take a look at my home page https://www.erictorberson.com or leave a message in my contact form.
Unauthorized use of a motor vehicle is intentionally or knowingly operating another’s boat, airplane, or motor vehicle without the other’s consent.
What is “Operate” a Motor Vehicle?
Operate doe not necessarily mean driving. Case law has determined that it means “took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use”
What is the Punishment for Unauthorized Use of a Motor Vehicle in Texas?
Unauthorized Use of a Motor Vehicle in Texas is a state jail felony. This means up to a maximum of a $10,000 fine and/or 2 years in prison (state jail).
The Difference Between Joyridings and Auto Theft
Joyriding is unauthorized use of a motor vehicle without the proof of intent to steal the vehicle. Auto theft is an intention of not returning the vehicle.
What is the Value of the Stolen Property?
The stolen property is valued at the fair market value of the property at the time and place of the offense. If that cannot be determined it is the cost of replacing the property within a reasonable amount of time after the theft.
This specifically applies to a situation where there are no injuries and the accident involves a situation such as just a one car accident. The damage is just to the car that crashed and nobody else’s property or roadside property damage. There are other specifics of the Texas Transportation Code Section 550 that cover injuries, damage, and/or death.
Let’s say that a vehicle is driving on a roadway and must swerve to miss a dog or deer and subsequently drives off the road and crashes. The accident here only damages the driver’s car. Assuming no bodily injury for this situation, this is an accident resulting in vehicle damage only.
If the damage to the vehicle is
“to the extent that it cannot be normally and safely driven shall immediately by the quickest means of communication give notice of the accident” to local law enforcement.
The ‘quickest means possible’ is not clearly defined. It might be a cell phone call immediately. It might mean that a person might report it the next day after being checked out by medical personnel. A passer by may give the person a ride to a safe place because remaining at the scene is not a suitable place for a person to wait.
A law enforcement officer shall make a report in a case where the damage to any one vehicle is apparently $1,000 or more. This report shall be electronically filed with the DPS no later than 10 days after the accident.
What if I can normally and safely drive my vehicle even though it has over a $1,000 damage?
Even though the Texas Transportation Code Section 550.062 states that a law enforcement officer shall complete a report it is not clear what happens if they do not. There does not appear to be a duty for a person to report an accident of over $1,000 damage is their vehicle can be normally and safely driven.
Did you mean Protective Order vs Restraining Order?
What is the difference between a Restraining Order and a Protective Order?
Restraining Order
Protective Order
What does it do?
In civil cases it orders someone to do or refrain from doing something to protect property or a child in family cases
It orders someone to leave a violence victim alone from harm, threatening or coming near a person for a certain period of time
What is a Temporary Ex Parte Protective Order?
‘Ex Parte’ means contacting the court without the other side being involved. An application is filled out and filed with the court clerk.
Texas Family Code Sec. 82.009 requires and applicant to provide 1) a detailed description of the facts and circumstances of the alleged family violence and need for a protective order and 2) be signed by each applicant under oath that the described circumstances in the application are true and correct to the best knowledge and belief of the applicant(s).
The judge will review it for ‘clear and present danger of family violence’. If found, the judge will enter a temporary ex parte order for protection of the applicant without further notice or hearing. The court may order the respondent to do or not do a specified act.
The temporary ex parte order lasts a maximum of 20 days and may be extended on the court’s own motion or the applicant’s.
What is a Protective Order in Texas?
In case you meant to read about a protective order instead of restraining order I will discuss a P.O. first. An application for a protective order must be filled out by the victim or another adult member of the household and filed with the court clerk.
For a dating relationship any adult may apply for a protective order to protect a child. Also a prosecuting attorney or Department of Family and Protective Services may file for a P.O. for a victim.
(1) the name and county of residence of each applicant;
(2) the name and county of residence of each individual alleged to have committed family violence;
(3) the relationships between the applicants and the individual alleged to have committed family violence;
(4) a request for one or more protective orders; and (5) whether an applicant is receiving services from the Title IV-D agency in connection with a child support case and, if known, the agency case number for each open case.
Where can I file for a Protective Order?
The proper venue is in the county where the applicant resides, the respondent resides, or the county where the alleged family violence occurred.
Any individual affected by the protective order my file a Motion to Vacate and the court will set a date for a hearing on the motion as soon as possible.
Can a Temporary Ex Parte Protective Order Kick me out of my House?
The only way a person can be excluded from their residence by a temporary ex parte order is the following according to Texas Family Code Sec 83.006 when the applicant:
(1) files a sworn affidavit that provides a detailed description of the facts and circumstances requiring the exclusion of the person from the residence; and
(2) appears in person to testify at a temporary ex parte hearing to justify the issuance of the order without notice.
(b) Before the court may render a temporary ex parte order excluding a person from the person’s residence, the court must find from the required affidavit and testimony that:
(1) the applicant requesting the excluding order either resides on the premises or has resided there within 30 days before the date the application was filed;
(2) the person to be excluded has within the 30 days before the date the application was filed committed family violence against a member of the household; and
(3) there is a clear and present danger that the person to be excluded is likely to commit family violence against a member of the household.(c) The court may recess the hearing on a temporary ex parte order to contact the respondent by telephone and provide the respondent the opportunity to be present when the court resumes the hearing. Without regard to whether the respondent is able to be present at the hearing, the court shall resume the hearing before the end of the working day.
What About Filing a Protective Order During a Divorce or Child Custody Battle?
The application must be filed in the county where the applicant’s suit is pending or the county which the applicant resides.
What is in a Notice of Application for a Protective Order?
CONTENTS OF NOTICE OF APPLICATION: a) A notice of an application for a protective order must:(1) be styled “The State of Texas”;
(2) be signed by the clerk of the court under the court’s seal;
(3) contain the name and location of the court;
(4) show the date the application was filed;
(5) show the date notice of the application for a protective order was issued;
(6) show the date, time, and place of the hearing;
(7) show the file number;
(8) show the name of each applicant and each person alleged to have committed family violence;
(9) be directed to each person alleged to have committed family violence;
(10) show: (A) the name and address of the attorney for the applicant; or (B) if the applicant is not represented by an attorney:(i) the mailing address of the applicant; or(ii) if applicable, the name and mailing address of the person designated under Section 82.011; and
(11) contain the address of the clerk of the court. (b) The notice of an application for a protective order must state: “An application for a protective order has been filed in the court stated in this notice alleging that you have committed family violence. You may employ an attorney to defend you against this allegation. You or your attorney may, but are not required to, file a written answer to the application. Any answer must be filed before the hearing on the application. If you receive this notice within 48 hours before the time set for the hearing, you may request the court to reschedule the hearing not later than 14 days after the date set for the hearing. If you do not attend the hearing, a default judgment may be taken and a protective order may be issued against you.”
How do I know if I have a Protective Order Hearing?
This does not apply to an Temporary Ex Parte Protective Order.
A respondent is entitled to notice of the application of a protective order. The service of notice of a protective order is done in the same way as a citation under the Texas Rules of Civil Procedure Rule 106 such as is filed in a lawsuit or a divorce. Service by publication is not allowed.
How do I know if I have a Protective Order against me?
A protective order signed by the judge must be delivered to the respondent to be valid. Under Texas Family Code Sec 85.041 it shall be delivered in one of the following ways:
(1) delivered to the respondent as provided by Rule 21a, Texas Rules of Civil Procedure;
(2) served in the same manner as a writ of injunction; or
(3) served in open court at the close of the hearing as provided by this section.
(b) The court shall serve an order in open court to a respondent who is present at the hearing by giving to the respondent a copy of the order, reduced to writing and signed by the judge or master. A certified copy of the signed order shall be given to the applicant at the time the order is given to the respondent. If the applicant is not in court at the conclusion of the hearing, the clerk of the court shall mail a certified copy of the order to the applicant not later than the third business day after the date the hearing is concluded. (c) If the order has not been reduced to writing, the court shall give notice orally to a respondent who is present at the hearing of the part of the order that contains prohibitions under Section 85.022 or any other part of the order that contains provisions necessary to prevent further family violence. The clerk of the court shall mail a copy of the order to the respondent and a certified copy of the order to the applicant not later than the third business day after the date the hearing is concluded. (d) If the respondent is not present at the hearing and the order has been reduced to writing at the conclusion of the hearing, the clerk of the court shall immediately provide a certified copy of the order to the applicant and mail a copy of the order to the respondent not later than the third business day after the date the hearing is concluded.
What is a Magistrates Emergency Protection Order?
After an arrest for a family violence (or sexual assault, indecent assault, aggravated sexual assault just to name a few others) an order for emergency protection may be issued because of a concern of the magistrate, victim, guardian of victim, peace officer, or attorney for the state.
The emergency protection order from the magistrate is mandatory if there is serious bodily injury of the victim or use of a deadly weapon during the alleged assault.
The E.P.O may prohibit further family violence, communication in a threatening manner, and an indirect threat to the person protected. Also if the magistrate finds good cause the arrested party may be prohibited from going near the residence, place of employment, or child care facility or school of a child protected under this order.
Unless the person named in the E.P.O is a full time paid law peace officer firearms may be ordered to remain out of the arrested person’s possession.
Will an Emergency Protective Order Affect My License to Carry (LTC)?
The E.P.O. lasts at least 31 to 61 days if not involving a deadly weapon. If the arrested person allegedly used a deadly weapon the length of the E.P.O. is a minimum of 61 to 91 days. The order can be modified in a noticed hearing if unworkable.
No Deadly Weapon
Allegedly Used Deadly Weapon
At least 31-61 days
At least 61-91 days
What is a Restraining Orders vs. Protective Order?
A Temporary Restraining Order or a Restraining Order’s purpose is to preserve status quo of a situation at the last actual peaceable, non-contested status that preceded the controversy.
The order can be prohibitive or mandatory. Prohibitive orders would strictly prohibit a party from taking certain actions as opposed to requiring an action. Sometimes order or injunctions require an action that is mandatory to maintain the status quo such as requiring a person to maintain property from loss, damage or destruction.
Unless a T.R.O is for a divorce case with children and the T.R.O. is seeking to attach a child there is no need for it to verified or an affidavit attached.
A driver’s license is suspended for differing amounts of time depending on how old the driver is and whether there are previous suspensions or convictions in the driver’s past. Below is a chart showing driver’s license suspension periods for DUI and DWI charges.
This chart below is the suspension periods based on the DPS Administrative License Revocation hearing results. Also these apply if the driver does not request a hearing within 15 days of refusal or failure to provide a specimen.
Accusation
DL Suspension Driver under 21
DL Suspension Driver 21 an up
DUI (minor only) or DWI who consensual breath/blood test failure with no priors
60 days
90 days
DUI (minor) or DWI (prior within 10 years) consensual test breath/blood failure with prior
120 days
1 year
DUI with 2 or more prior convictions
180 days
DUI or DWI (prior within 10 years) refusal with no prior
180 days
180 days
DUI or DWI refusal with prior
2 years
2 years
The suspension periods for the actual criminal court cases with the different DUI and DWI levels will have additional possible suspension periods to be aware of.
Texas is a one party consent law state. This means if you are one of the parties to the conversation and want to record it you can. If you are not a party to the conversation you need to have consent of one of the participants to record the conversation.
(19) “Oral communication” means a communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. The term does not include an electronic communication.
The current federal law, as of September 2020, designates marijuana as an illegal drug. It is listed as a schedule 1 drug by the DEA. Schedule 1 drugs are considered to not have medical value and are a high potential for abuse. Another drug listed as a schedule 1 drug is heroin. Schedule 1 and 2 have the most regulatory restrictions on research and access.
The More Act
The Marijuana Opportunity, Reinvestment, and Expungement Act is a bill in the house of representatives that decriminalizes marijuana and removes it from the schedule 1 list of drugs. This a major ground breaking bill that also allows people to expunge their federal record of marijuana offenses.
SAFE Banking Act
The Secure and Enforcement Banking Act is a bill that has passed the house that will allow states that have legalized marijuana to engage in business with licensed marijuana businesses. Currently marijuana businesses are able to accept cash only. Their banking institutions are prevented from operating accounts with funds generated from marijuana sales.
Does the VA Prescribe Medical Marijuana?
The VA does not currently prescribe medical marijuana because it is a schedule 1 drug. The VA is a federal program and must follow federal laws. Hopefully the changes. Veterans in the VA system have to resort to opioids and other meds to cope with their issues that may be resolved by cannabis.
The cost of a DWI lawyer depends on the severity of the DWI charge. DWI cases range from Class B misdemeanors up to 1st Degree Felony charges. The amount of work to do on a case and the potential consequences to a person charged with DWI will (or should) determine the amount charged.
DWI Charge
Max Severity of Punishment
Lawyer Cost
Class B Misdemeanor
6 months jail
$3,000 and up
Class A Misdemeanor
1 year jail
$4,000 and up
State Jail Felony
2 years state jail
$6,000 and up
3rd Degree Felony
10 years prison
$8,000 and up
2nd Degree Felony
20 years prison
$10,000 and up
1st Degree Felony
life or 99 years prison
$12,000 and up
Probable Minimal DWI Lawyer Cost
This chart is a a very loose estimate of what a possibly qualified lawyer would charge as a very minimum. These minimum costs are what the very lowest I would consider charging but only in special circumstances. In most cases my fees will be higher to reflect the work and time needed to properly represent my clients. I have trained several years in defending DUI and DWI cases around Texas.
A lawyer who is not experienced in DWI defense should be upfront with the potential client. It is an ethical duty a lawyer owes to clients.
A DWI case can be complicated and have devastating consequences on a person. This is why it is very important to select a lawyer trained in defending these cases in a competent manner.
Some Clients Should Attend AA Meetings and/or Counseling
Do Not Talk About the Arrest to Other People
Be Patient the Case Takes Some Time
Have Faith That it Will Turn out Well-This Really Works
Hire an Attorney Trained in DWI, DUI, BWI Law
Be Prepared to Possibly Need to Hire an Expert Witness
What to do if You’ve Been Drinking and Get Pulled Over
When a driver is being stopped after they have been drinking it is important to correctly pull over. When the police flashers are visible in the mirror the driver should use a signal and safely pull over to the right. Everything is recorded and the negative actions will be in the police report.
New Braunfels DWI Attorneys
Not all attorneys train for the same cases or are willing to take the case to trial. It is important to find the lawyer who will do the best for your case. Your case may not need to go to trial and most cases actually do not. To be effective a lawyer needs to know how to take a DWI, DUI or BWI case to trial. Take a look at my web page here https://www.erictorberson.com/comal-county-criminal-lawyer.
Comal County Texas DWI Costs
The costs for a Comal County Tx DWI vary. There is a range depending on the severity of the DWI. The amounts below are not exact except for Max Court Fine–
Level of DWI
Bail
Max Court Fine
State Conviction FineRange Depends if Previous Conviction was Within 36 months
Class B, DWI 1st
$1,000-$2,000
$2,000
$3,000
Class A, DWI .15 or Higher
$2,000-$4,000
$4,000
$6,000 (.15 BAC and up are always $6k)
Class A, DWI 2nd
$2,000-$4,000
$4,000
$3,000-$6,000
State Jail, DWI Child <15 yr
$6,000-$8,000
$10,000
$3,000-$6,000
3rd Degree Felony, DWI 3rd
$8,000-$10,000
$10,000
$3,000-$6,000
2nd Degree Felony, DWI
$12,000-$20,000
$10,000
$3,000-$6,000
How Do I Get Out of a DWI?
Getting out of a DWI can happen many ways. I have gotten them dismissed for various reasons before trial and have won several DWI cases in jury trials. A lawyer needs to determine if an expert is needed. Sometimes the probable cause may be bad or the breath or blood test. Each case is unique.
Texas and all other states test for Blood Alcohol Content (BAC) when a driver or operator is suspected of intoxication after stopped by the police. Some jurisdictions ask for a breath test first and then if refused, get a warrant. Some first ask for a blood test and get a warrant if it is refused.
What is Tested For in a DWI, BWI DUI Blood Test?
A blood test vial will be examined for alcohol and maybe drugs as well. It depends what the cop who makes the arrest requests. It takes extra work to test for both alcohol and drugs. If a person looks or acts intoxicated and does not smell of alcohol, the test may only test for drugs either prescription or illegal.
How Long Does it Take to Get Blood Alcohol Test Results?
Blood test results vary. In Texas it usually take a few months. The laboratories are usually backed up with blood testing. A test can be rushed but it will need to be a special case such as one involving a death.
Who Can Draw a Blood Specimen in a DWI Case?
A consensual blood alcohol specimen in Texas must be taken in a sanitary place and only by the following:
a physician
a qualified technician
a registered professional nurse
a licensed vocational nurser or
a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic authorized to take a blood specimen subject to Texas Transportation Code 724.017 (c) below.
Texas Transportation Code 724.017 (c) says a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic may take a blood specimen only if authorized by the medical director for the entity that employs the technician-intermediate or technician paramedic.
If a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic takes a blood specimen at the request or order of a peace officer the peace officer must:
observe the taking of the specimen and
immediately take possession of the specimen for the purposes of establishing a chain of custody
What is a Medical Director?
A medical director is a licensed physician who supervises the provision of emergency medical services by a public or private entity that provides those services and employs one or more licensed or certified emergency medical technician-intermediates or emergency medical technician-paramedics.
Who Can Draw my Blood When I Refuse a Blood Test?
The above rule 724.017 is specified for a consensual (voluntary) blood draw. It does not apply to a refused blood test where a warrant is issued for a blood draw.
The Texas court of criminal appeals said in State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) –
“We agree with the court of appeals’s determination that Chapter 724 is not controlling authority when it comes to determining the reasonableness of how a blood draw was performed under the Fourth Amendment. In Beeman v. State, we held that Chapter 724 is inapplicable when there is a warrant to draw blood; therefore, compliance with Chapter 724 is not necessary to satisfy the Fourth Amendment.[51] Whether a blood draw is conducted pursuant to a warrant or not, the assessment of reasonableness is purely a matter of Fourth Amendment law.”
In Cavazos v. State, 969 S.W.2d 454 (Tex. App. 1998) the court allowed a phlebotomist’s testimony to hold her qualified over the defense’s objection. “Phlebotomists are not per se qualified to draw blood, but may be qualified based on their job duties or experience Martinez v. State (Tex. App. 2014).” See the following:
“At trial, Williams testified that her title was “phlebotomist,” she was trained as a medical assistant, and her responsibilities include drawing blood. The hospital had employed her in that capacity for over one year and she also had three-and-a-half years’ experience drawing blood for a physician. She also had prior experience conducting police-ordered blood draws. Williams described the procedure for conducting a police-ordered blood sample and the importance of not using alcohol when drawing blood for a blood-alcohol analysis. Williams, following police protocol, also signed her name on the tube containing Martinez’s blood. Viewing the evidence in the light most favorable to the trial court’s ruling, we hold that the trial court did not abuse Martinez v. State (Tex. App. 2014)”
So a person can draw blood in a warrant case who has no formal training but merely on the job training-
“Becknauld testified that while she had no formal training, she had been a phlebotomist for the past twenty four years.” Torres v. State, 109 S.W.3d 602, 2003 WL 21283663 (Tex. App. 2003)
What Location is Used For a Blood Draw?
All law enforcement phlebotomy programs outline specific guidelines, typically following OSHA standards, requiring that all blood draws be conducted in a controlled setting and on a stable surface. This does not include a car trunk or a backseat.
Blood Test Kit
Prior to the blood draw the phlebotomist shall verify the expiration date on the outside container is not expired. The expiration date should coincide with the expiration dates on the enclosed tubes. There is a lot number on the outside container. The phlebotomist shall record the expiration date and the lot number on the Phlebotomy Blood Draw Report.
What Tubes Are Used For DWI Blood Tests?
The test kit has gray topped evacuated blood test tubes used for blood alcohol screening. The DWI and DUI alcohol testing specifically require gray topped tubes. They have two chemical additives inside. The additives are:
Sodium Fluoride an antiglycolytic agent which inhibits the metabolic breakdown of glucose (blood sugar) by blood cells.
Potassium Oxalate an anticoagulation agent.
The Phlebotomist SHALL NOT use expired tubes.
The phlebotomist shall verify that the integrity of the tube is intact and visually ensure that the chemical additive is present. This is very important. In 2019 the New Jersey tube manufacturer Becton Dickinson & Company had tubes that were missing the additives. The resulting test could have been inaccurate by being falsely high or low if tested more than two days after storage at room temperature.
This machine is used to determine a driver’s blood alcohol content after being arrested for DWI or the other variations of operating such as DUI, DWI, BWI etc. The Intoxilyzer 9000 is the alcohol breath test machine that Texas and many other states use. Texas has used it since 2015 replacing the Intoxilyzer 5000.
The Intoxilyzer 9000 measures a breath test by giving grams of alcohol per 210 liters of breath. When testing a driver’s breath the machine operator will have the driver blow into the machine twice within 3 minutes. The two readings my not be farther apart than 0.02 g/210 L.
Lambert-Beer Law
The Intoxilyzer 9000 uses the Lambert-Beer Law which states that the amount of energy absorbed by a particular substance is proportional to the number of absorbing molecules in the sample. The amount of infrared energy absorbed in a breath sample is proportional to the amount of ethanol present in a breath sample blown into the sample chamber.
Infrared Spectrometry Breath Test
The Intoxilyzer 9000 uses infrared spectrometry (IR) to measure alcohol in breath. IR analysis is the absorption of infrared energy by alcohol molecules in breath. It measures the absorption of radiant energy by a substance.
IR is a lower frequency wavelength than the visible light that we see. The amount of IR energy absorbed by the breath sample is proportional to the amount of ethanol (alcohol). This is again measured as grams of alcohol per 210 liters of breath. The machine uses multiple wavelengths of IR energy to detect substances in the breath. The machine is supposed to be able to differentiate between different substances in the breath such as alcohol and acetone.
Diabetic Ketoacidosis
Diabetic ketoacidosis is a condition with diabetics where their breath smells like acetone. This is due to a high number of ketones in their blood. When the body breaks down fatty acids for energy the liver releases ketones. When there is too much glucose in the blood and not in the cells the ketones can rise too high.
Intoxilyzer Calibration
The machine like other machines requires maintenance. Part get worn and break. The 9000 needs to be calibrated or it is not accurate. It only measures as well as it is calibrated. There is a simulator solution that delivers a known measurement of alcohol to the machine to test and calibrate the instrument. This is a calibration verification.
Known solutions are created by technical supervisors and are called reference sample solutions. If the reference sample solution is miscalculated or wrong the machine’s test reading will be inaccurate as well. Two calibration verifications are conducted for each test done. The acceptable range for the calibration verification is 0.070 to 0.090 g/210 L. Any results outside this range will stop the test.
The solution must be between 33.80 to 34.20 degrees celsius. The instrument is supposed to stop the test if outside this range.
15 Minute Observation
For the breath test results to be valid the breath test operator must be in the presence of the test subject AT LEAST 15 minutes immediately before the test. This is to ensure that the subject has not placed any substance in their mouth. The 15 minute observation needs to be repeated if anything is put into the subjects mouth. This is to make sure there is no mouth alcohol present. Only certified breath test operators may conduct a 15 minute observation.
If the two tests differ by more than 0.02 g/210 L it would likely indicate residual or mouth alcohol and the breath test is invalid. This can happen if a person burps. That would be an inaccurate breath test because stomach gas would spike the alcohol IR reading.
The 9000 requires the operator to check the blue button by tapping it and typing yes that the 15 minute observation was conducted. The operator must sign in the box on the touchscreen.
Starting the Intoxilyzer 9000
After signing the box for the observation period the machine begins a testing sequence by checking itself. Any errors that the machine has are supposed to show. How do we know the self testing is not flawed? The machine conducts air blanks during the process and purges the sample chamber with room air. This result tested must be 0.00 or the 9000 is supposed to stop.
Once the machine is started the operator asks the subject to blow steadily into the machine twice. All evidential tests are stored in the Intoxilyzer 9000 in PDF documents. The report can be printed out at any time.
Deferred adjudication probation is a form of probation where the defendant pleads guilty or no contest, to a class B misdemeanor or higher, in front of a judge. The judge may accept the defendant’s plea and defer further proceedings without entering an adjudication of guilt. The judge then places the defendant on deferred adjudication community supervision.
A defendant is NOT eligible for deferred adjudication for the following:
Trafficking of Persons
Continuous Trafficking of Persons
Driving While Intoxicated with Child Passenger
Flying While Intoxicated
Assembling or Operating an Amusement Ride While Intoxicated
Intoxication Assault
Intoxication Manslaughter
Driving While Intoxicated with a Commercial Driver’s License
Driving While Intoxicated with .15 or higher BAC
Boating While Intoxicated with a Commercial Driver’s License
Boating While Intoxicated with .15 or higher BAC
Certain Drug Offenses Committed in Drug Free Zone
Indecency with a Child
Sexual Assault
Aggravated Sexual Assault
Aggravated Promotion of Prostitution
Compelling Prostitution
Aggravated Assault
Murder, except if the judge determines defendant did not cause death, intend to kill, and did not anticipate that a human life would be taken
Deferred Adjudication for felony cases is a maximum of 10 years. For misdemeanor cases the maximum length of deferred adjudication is 2 years. A misdemeanor probation can be extended to 3 years.
The 3 year misdemeanor probation may again be extended another 2 years if the defendant has failed to pay money and the 2 year addition extension will increase the likelihood that the money will be paid.
Deferred Adjudication and Employment
A background check will allow employers to see the arrest. There is no adjudication so there will be no conviction showing on a background check.
How Do I Get Deferred Adjudication Off My Record?
Once Deferred Adjudication is completed the defendant is eligible for a Non Disclosure. For a felony there is a 5 year waiting period.
For a misdemeanor there is a 2 year waiting period after probation if the offense was under Texas Penal Code Chapter 20, 21, 22, 25, 42, 43 or 46.
Penal Code Chapter
Misdemeanor Charge 2 year Waiting Period
20
Operation of Stash House, Unlawful Restraint
21
Public Lewdness, Indecent Exposure
22
Assault
25
Harboring Runaway Child, Violation of P.O.
42
Disorderly Conduct, Obstruction of Highway, Harassment, Abuse of Corpse, Cruelty to Livestock Animals, Attack on Assistance Animal, Cruelty to Nonlivestock Animals
43
Prostitution
46
Unlawful Carrying Weapons, Unlawful Possession of Firearm
Once the defendant is eligible he or she will file a petition with the court for an order of nondisclosure. The state is sent notice for an opportunity for a hearing. If the judge considers it in the best interest of justice, the court shall sign an order prohibiting criminal justice agencies from disclosing criminal history records relating to the offense placed on deferred adjudication.
Getting traffic tickets are a part of life. Dealing with them can be frustrating and time consuming. It is best to hire a traffic ticket attorney in San Antonio to deal with it. You will have a much better chance of keeping it off of your record. Call the number below and get started-
You definitely want to keep the ticket off your record. I get many dismissals. It is never a guarantee for a dismissal but that is the goal. If that is not quite possible I can almost always keep it off my client’s record with minimal requirements.
Most San Antonio traffic tickets will go through the San Antonio Municipal Court. If they are not in the San Antonio city limits they will be in outlying suburb courts around the city. They might also be in the county where appearances are in the JP courts.
San Antonio Muni Court is a very busy place. If you do not have to it is advised not to go yourself. Parking and security is a hassle. Hiring an traffic ticket lawyer in San Antonio to handle it is the best advice.
San Antonio Warrants
Having warrants can happen by forgetting to resolve traffic tickets. This will be a good time to hire a lawyer to step in and mitigate the damage. Many times some of the tickets can be dismissed and the high fines can be reduced to an affordable resolution.
CDL Traffic Lawyer
These are very important to keep of a driver’s record. A CDL ticket can have major consequences on a truck driver’s license and ability to earn a living. Hire a San Antonio CDL lawyer asap.
First of all “Bail” is security given by an accused to appear in the proper court because of an allegation. Bail includes a bail bond or a personal bond. The purpose is to secure the presence of an accused in trial for an accusation against him or her.
What is a Personal Bond?
A personal bond, sometimes known as a PR Bond, is where a magistrate releases an arrested person on personal bond without a surety or other security.
A surety is a set amount of money that a person must post in order to be released from jail. The full amount can be posted or a percentage paid to a bail bondsman. The good thing about a personal bond is that the arrested person can save the money for something else. Surety money is returned after the case is concluded. But money paid to a bondsman, usually around 10 percent, is a fee that the bondsman keep for providing their services.
How Does a Personal Recognizance Bond Work?
A personal bond in Texas can be given by any magistrate. There are a few exceptions where the court before whom the case is pending may only release the defendant on a personal bond. Those exceptions are listed below:
Capital Murder
Aggravated Kidnapping
Aggravated Sexual Assault
Deadly Assault on Law Enforcement or Corrections Officer
Injury to a Child, Elderly, or Disabled
Aggravated Robbery
Burglary
Engaging in Organized Criminal Activity
Continuous Sexual Abuse of a Child
Continuous Trafficking of Persons
Ch 481 and 485 Health and Safety Code Drug Cases with over minimum sentences of a first degree felony (5 years).
Refusal to submit for testing ordered by the magistrate for alcohol or drug abuse can revoke a personal bond.
What is Required for a Personal Bond?
The defendants:
Name
DOB
Place of birth
Address
Place of employment
Height
Weight
Hair color
Eye color
Drivers license and state
Nearest relative name and address if any
Oath signed by defendant:
“I swear that I will appear before (the court or magistrate) at (address) Texas, on the (date), at the hour of (time) or upon notice by the court, or pay to the court the principal sum of (amount) plus all necessary and reasonable expenses incurred in any arrest for failure to appear.”
Every state makes their own laws for people present within its borders. Not all state laws allow for the Castle Doctrine. In Texas. person’s home is their castle. A person can use deadly force if they reasonably believe deadly force is immediately necessary under various criteria.
When Can Deadly Force be Used in Texas?
When a person reasonably believes deadly force is necessary it can be used in the following circumstances:
A person can use deadly force against the other person’s attempted use or use of deadly force
To prevent a person’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, aggravated robbery (bodily injury caused during theft while using a deadly weapon or serious bodily injury caused during a theft)
Against someone unlawfully and forcefully attempting to enter or entering another person’s home, vehicle or employment.
Against someone unlawfully or forcefully attempting to remove or removing a person from their home, vehicle, or employment.
Against someone who was unprovoked
Can be used if the person using it is not involved in criminal behavior higher than a Class C misdemeanor.
Is There a Duty to Retreat in Texas?
In Texas “stand your ground law” there is no duty to retreat from a location where the person has a right to be. Also the person using force to the degree he or she believes reasonably necessary cannot have provoked the the other person or be committing criminal activity above a class C misdemeanor.
Again the force may be deadly force when and to the degree the actor reasonably believes the deadly force is immediately necessary.
Can You Use Self Defense Against a Police Officer?
Generally speaking, under Texas Penal Code 9.31, it is not legal to resist an arrest or search by a police officer even if the arrest or search is unlawful. But the use of force to resist an arrest or search is justified if before resisting, the police uses or attempts to use greater force than necessary. The actor may use force to resist to the reasonable degree necessary to protect against the peace officer using greater force than necessary.
Defense of Others Law
Can you use deadly force to protect someone else?
Yes a person can use deadly force against another to protect a third person. The person using force must reasonably believe he or she would be justified in using deadly force to protect against unlawful force or unlawful deadly force. Also the person protecting the 3rd person must reasonably believe that intervention is immediately necessary to protect the person.
Put another way, so long as the person using deadly force to protect the third person reasonably believes that the third person would be justified in using deadly force to protect themselves.
Can You Use Deadly Force to Protect Property in Texas?
Yes. A property owner can protect land and tangible movable property. This is when and to the degree there is a reasonable belief deadly force is immediately necessary such as preventing imminent commission of the following:
Arson
Burglary
Robbery
Aggravated Robbery
Theft during the nighttime
Criminal Mischief during the nighttime
Or prevent someone fleeing after committing one of the above listed crimes. And the person protecting the property reasonably believes that the land or property cannot be protected or recovered by any other means. Deadly force is allowed when the actor’s use of less than lethal force would risk substantial risk of death or serious bodily injury.
Can I Use Force to Protect Another Person’s Property?
Yes protecting another person’s property is allowed as if the property was his or her own and under the circumstances above. There must be a reasonable belief that the 3rd person requested his or her protection or a legal duty to protect it.
Can I use a Device to Protect Property?
Yes a device is allowed to protect land or tangible movable property if it is not known by the installer that it is designed to cause or create a substantial risk of serious bodily injury or death. The device must be reasonable under the circumstances known to the person installing the device.
As of 2020 possession of marijuana is still illegal in Texas. The following chart lays out the punishment range for the amount of possession of marijuana:
Leaving the scene of an accident is what is called a ‘hit and run’. In Texas it can range from a class C misdemeanor all the way up to a 2nd degree felony. A class C misdemeanor if punishable by a fine of up to $500 and a 2nd degree felony is punishable by up to a $10,000 fine and 20 years in prison if death resulted.
Duty on Striking an Unattended Vehicle Texas
Texas Transportation Code Section 550.024 requires a driver who strikes an unattended vehicle to stop, find, and give that owner the name and address of the operator and the owner of the vehicle that struck the unattended vehicle. If the unattended vehicle owner is not around then leave a written notice giving the name and address of the operator and the owner of the vehicle that struck the unattended vehicle and a statement of the circumstances of the collision.
Leaving the scene without leaving information is a crime. If the damage is less than $200 it is a class C misdemeanor and if more than $200 it is a class B misdemeanor.
Duty on Striking Fixture
Texas Transportation Code Section 550.025 addresses striking a structure, fixture or highway landscape. If damage is done adjacent to a highway the law requires the operator to notify the owner or person in charge of the property of the accident and of the operator’s name and address and the registration number of the vehicle the operator was driving.
If there is injury or death, or there is damage to the extent of $1,000 or more the operator must make a report to the department of public safety within 10 days if law enforcement does not investigate the accident.
If the damage is less than $200 it is a class C misdemeanor and if more than $200 it is a class B misdemeanor to leave without providing the required information.
Accident Involving Personal Injury or Death Texas
Texas Transportation Code 550.021 directs the vehicle operator who is involved in an accident that resulted or is reasonably likely to result in injury or death to immediately stop at or as close to the scene as possible.
The operator must return to the scene and immediate determine whether a person requires aid. The operator shall not unnecessarily obstruct traffic.
The operator will be required to give their name, address and registration number of their vehicle and liability insurer to any person injured, an occupant or operator of the vehicle involved in the collision.
The operator of the vehicle that involved injury or death must provide any injured person reasonable assistance including transportation or arrangements for transportation to a physician or hospital. At a minimum the operator must remain at the scene until emergency personnel or someone who the driver knows is capable of providing medical assistance arrives.
What if I Didn’t Know I Hit Someone?
In a 2018 case Curry v. State, the Texas court of criminal appeals affirmed the trial court ruling that if someone is in an accident they must stop, investigate and determine whether a person was involved and render aid. The state need not prove that the defendant knew that another person was injured in the accident.
Hit and Run Dog Law Texas
Texas Penal Code Section 42.092Cruelty to Non-livestock Animals makes it a crime to recklessly cause serious bodily injury or kill a domesticated animal in a cruel manner. It is also against the law to recklessly kill or cause serious bodily to a domesticated animal without the owner’s consent. A crime under this section is a 3rd degree felony and up to 10 years in prison and a $10,000 fine.
A person also cannot cause a domesticated animal bodily injury without the owner’s consent. This is a class A misdemeanor and up to 1 year in jail and $4,000 fine.
What Accidents Do Police Do Reports On?
A law enforcement officer shall make a written report of the accident if the accident resulted in injury to or the death of a person or damage to the property of any one person to the apparent extent of $1,000 or more.
The report required by Subsection (a) must be filed electronically with the department of public safety not later than the 10th day after the date of the accident.
An open container is a bottle, can or other receptacle that contains any amount of an alcoholic beverage and is open, has been opened, has a broken seal, or is partially empty.
The other important part of the open container law is that it takes place in the passenger area of a motor vehicle on a public highway. This is the area designed for the seating of the operator and passengers.
Where Do I keep My Open Alcohol or Liquor Bottle When Driving?
A opened bottle of alcohol is not a violation while driving if it is kept in certain places in the vehicle. The following areas are ok:
Glove Compartment that is locked
The trunk of the vehicle
If there is no trunk behind the last upright seat
This means that in a pickup truck the open container can be in the bed of the truck or behind the furthest back seat where there is room to store the container.
What is a Public Highway?
A Public Highway is in between or adjacent to the boundary lines of a public road, street, highway, interstate or other public maintained way for public use of motor vehicle travel.
Exceptions to the Open Container Law
There are exceptions to the open container law. The passenger area of vehicles used as transportation for compensation such as a bus, taxicab or limousine are not illegal places to possess an open container of alcohol.
Also excluded from being places of illegal possession of open containers are the living quarters of a motorized house coach, trailer, camper, motor home or a recreational vehicle.
What is the Penalty for Open Container in a Motor Vehicle?
The penalty for Open Alcoholic Beverage in a Motor Vehicle is a class C misdemeanor.
Can I be arrested for Open Container of Alcohol?
Yes a person can be arrested but only if they refuse to sign the ticket for notice to appear in court. The officer cannot arrest a person for the offense of Possession of Alcoholic Beverage in Motor VehicleTexas Penal Code 49.031.
What are the City of San Antonio Noise Ordinance Times?
The San Antonio Noise Ordinance daytime/evening times are 6 a.m. to 10 p.m. Sunday through Thursday. On Friday and Saturday the time 6 a.m until 11 p.m. Conversely the “nighttime” is 10 p.m. to 6 a.m. Sunday through Thursday and 11 p.m. to 6 a.m. Friday and Saturday.
A-weighting is used if not specified otherwise. A-weighting measures response of what the human ear hears cutting out lower and higher frequencies. It is general purpose measurements.
B-weighting is not commonly used and won’t need to be discussed.
C-weighting measures more to a humans response to a peak noise levels and some entertainment level noise measurements.
What is a Sound Level Meter?
A sound level meter is an instrument including:
microphone
amplifier
RMS detector
integrator or time averages
output meter
weighting network to measure sound pressure levels
You may want to purchase your own Decibel Meter to measure the sound. This can either prove or disprove a case. Click this Decibel Meter to look for Amazon meters.
How Loud is Too Loud in San Antonio?
The upper limit decibel level depends on how the property is zoned where the noise is coming from. The decibel measurement is taken from an adjacent property under separate ownership.
On residential zoned property the limit is 63 decibels. Subtract 7 decibels at nighttime, 10 p.m. to 6 a.m. Sun though Thursday and 11 p.m. to 6 a.m. Friday and Saturday.
For business zoned property the upper limit is 70 decibels except at nighttime subtract 7 decibels.
Industrial zoned property cannot make noise above 72 decibels unless at nighttime then subtract 7 decibels.
Entertainment zoned property is allowed 85 decibels subtracting 7 decibels at nighttime.
What is a San Antonio Noise Nuisance?
The San Antonio noise nuisance exceeds the limits stated above, or it is a loud, irritating, vexing, or disturbing sound originating from nearby property under separate ownership. The nuisance causes injury, discomfort, or distress to a person of reasonable nervous sensibilities.
What are the Riverwalk Noise Standards?
The nighttime 7 decibel subtraction does not apply to the River Walk area. Establishments cannot place speakers on or near the patio location outside the enclosed building.
The maximum decibels allowed are 72dB A-frequency weighting and 80dB C-frequency weighting.
What Time is Noise Curfew in Bexar County?
There is no ordinance or specifically outlined law about a noise curfew in Bexar County outside of a city limits. This does not preclude a noise violation covered under Disorderly Conduct Chapter 42 of the Texas Penal Code.
Outside the city limits in Bexar County is similar to any county where a Texas Noise Nuisance would be covered by the state disorderly conduct statute. City ordinances apply within their own particular city limits only.
The Disorderly Conduct offense of noise covers unreasonable noise, not including a sport shooting range (defined in Local Govt Code 250.001), in or near a private residence that he or she has no right to occupy.
Important Note: Noise is presumed to be unreasonable if it exceeds 85 decibels after the person making the noise receives notice from a magistrate or peace officer that the noise is public nuisance.
Noise is defined in Texas caselaw to be loud, confused, or senseless outcry, or a sound noticeably loud, harsh, or discordant. That definition can include music.
Who Gets The Ticket?
At a private residence, during a violation, any adult, adult guest or adult trespasser who could control the level of noise can be cited if a resident is not present.
At a business any owner, manager, operator, employee or person operating the noise making device may be cited for the noise violation.
For unattended noise makers the person who leaves the noise making device, child or animal unattended is responsible.
San Antonio Noise Violation Fine
A violation of the San Antonio noise ordinance results in a fine. For a person with no intent to violate the noise ordinance the penalty is a Class C misdemeanor with a fine of $100-$500.
For a person who purposefully or even recklessly violates the San Antonio noise ordinance the fine is from $100 to $2,000. For a previous conviction the minimum fine becomes $200. After 2 previous convictions the minimum fine is $300 thereafter.
Each day’s violation is a separate fine.
Conclusion
A person or establishment will want to know the particular noise ordinance that applies to them. This can be a costly ticket or series of citations if given over multiple occasions.
The best protection is to purchase a decibel meter and periodically measure the sound at the edge of a particular property that could possibly lodge a complaint. Being proactive will always look better to a compliance officer. Take note of the recordings in case they are needed in the future.
In Texas the driver is required to sign a traffic ticket. The Texas Code of Criminal Procedure states that a driver must sign a citation’s promise to appear line.
Can You be Arrested for Not Signing a Traffic Ticket?
In Texas you will be arrested if you refuse to sign a traffic citation. The Texas Transportation Code Chapter 543.005 requires a person cited to promise to appear. If they refuse to sign the citation the person will sit in jail until the court.
“To secure release, the person arrested must make a written promise to appear in court by signing the written notice prepared by the arresting officer.”
By signing the citation a person is only promising to appear. They are not admitting to an offense.
(Advice: It is best not to argue on the roadside. Save your disagreement of the ticket for the court room. It is best to let a traffic ticket attorney do it for you.)
Can You be Arrested for Speeding?
Generally speaking no you cannot be arrested for speeding unless you refuse to sign the citation.
However if a driver is speeding considerably over the speeding limit there is a possibility of being arrested for Reckless Driving, Texas Transportation Code 545.401.
Reckless Driving is defined as follows:
“if the person drives a vehicle in wilful or wanton disregard for the safety of persons or property.”
Texas also has a charge of Racing on Highway Texas Transportation Code Chapter 545.240:
(a) A person may not participate in any manner in:
(1) a race;
(2) a vehicle speed competition or contest;
(3) a drag race or acceleration contest;
(4) a test of physical endurance of the operator of a vehicle; or
(5) in connection with a drag race, an exhibition of vehicle speed or acceleration or to make a vehicle speed record.
It is relevant to note that if a person is Racing on Highway and causes death or serious bodily injury the charge is a Second Degree Felony with up to 20 years in prison.
There are 2 other traffic violations other than speeding where an officer CANNOT arrest a person unless they refuse to sign the citation-
“(B) the use of a wireless communication device under Section 545.4251;
(This makes it a crime to read, write, or send a message while driving. It is ok to do it stopped or activating a function that plays music.)
or
(C) a violation of the open container law, Section 49.031, Penal Code;”
(This means an alcoholic beverage that is open or with a broken seal that contains any amount of alcoholic beverage.)
Conclusion
A person does not technically have to sign a traffic citation. But it will mean they will sit in jail. In Texas every citation is arrestable except for Speeding, Texting While Driving, and Open Container.
The easy and advisable solution to avoid arrest is to sign the ticket and argue about it later in court. Sure this will cost money and time. But the alternative will cost money, time AND being arrested and jailed.
Deferred Disposition is a way to resolve a Class C ticket in Texas that gets the ticket dismissed within 6 months. The 6 month probation may be longer if good cause is shown by the defendant to the judge that additional time should be granted.
Deferred Disposition vs Deferred Adjudication
Deferred Disposition is a method in Texas that is only used with Class C tickets. Deferred Adjudication is used in Class B and above charges as a probation that results in a dismissal if completed properly.
Both result in dismissals of the charges if completed properly. Deferred disposition is better in its own way though. Once attained in a Class C case a defendant can have the charge expunged permanently from their record.
A Deferred Adjudication in any Class B and above case will not be allowed to be expunged. The charge can be sealed by a Non-Disclosure once successfully completed and the probation dismissed. There is no expungement allowed in Deferred Adjudication probation cases.
What is Deferred Disposition for a Traffic Ticket?
The Texas Code of Criminal Procedure Art. 45.051 defines Deferred Disposition. It can be difficult to read the statute so hopefully this blog post helps the reader. It is important to distinguish that certain parts of the statute change as of January 1, 2020 for offenses committed on or after January 1, 2020.
The most inspiring result of a Deferred Disposition is that once satisfactorily complete the court SHALL note in the docket that there is NOT a final conviction. This is wonderful especially for someone who was arrested for a higher charge and then the case is reduced to a Class C Deferred Disposition probation. The higher charge arrest can now be expunged from their record. Expungement means GONE FOREVER.
What Happens if you Break Deferred Disposition?
Breaking Deferred Disposition can result in a conviction or getting another chance. Getting a new ticket or arrested and resolving the new case before a deferral period is up will be a problem. This would violate one of the deferral requirements that most have.
If you get a ticket and it is pending during a deferral period it will most likely not cause a problem unless it is in the same city. The court will most likely spot the new citation. Also, an arrest can be detected with a criminal history check easier than a new citation.
I have had clients who did not resolve a new charge (citation and new arrest) until the deferral period was done and it worked out fine. This may not be the same for all jurisdictions so each situation varies.
Can I Get Deferred Disposition with a CDL?
This Deferred Disposition does not apply to drivers who have a Commercial Drivers License (CDL). Chapter 45 Article 45.051 (f) states that a driver with a CDL is not able to take advantage of the Deferred Disposition statute.
Does this mean if you have a CDL that you lose all hope? No I have been successful in convincing open minded prosecutors to work around this. The same with construction zone tickets.
Can I Get Deferred Disposition on a Construction Zone Ticket?
Chapter 45 excludes Texas Construction Zone tickets from qualifying for Deferred Disposition. The signage needs to say “fines double when workers present”
(A) where highway construction or maintenance is being undertaken, other than mobile operations as defined by the Texas Manual on Uniform Traffic Control Devices; and
(B) that is marked by signs:(i) indicating that it is a construction or maintenance work zone;(ii) indicating where the zone begins and ends; and(iii) stating: “Fines double when workers present.”
Does this absolutely mean no Deferred Disposition? No this is not the end of the world. The ticket must also say “workers were present”. But the prosecutor’s I have worked with have used discretion to work around this.
Can I Get a Second Chance for my Deferred Disposition?
If something goes wrong while on Deferred Disposition it is required that the judge send notice and set a show cause hearing. The defendant is required to appear and show good cause on why the deferral should NOT be revoked.
A second chance is up to the judge to allow. This means that the deferred probation is extended a certain amount of time. If the requirements are not met during the extension, and the judge assesses a fine, then the charge becomes a final conviction. It may be tough to get the judge to extend the probation more than once without extenuating circumstances.
Conclusion
Deferred Disposition is a very beneficial resolution to a person’s case. This is a safe way to resolve a case and have it dismissed. If a person is “Not Guilty” of the ticket then a trial may be the only way to go. With a deferred the defendant does have to plead ‘guilty’ or ‘no contest’. Some people do not like to do that. Also if a person thinks that they may get more tickets during a deferred period it may be tough to complete. If that is the case have a Texas Traffic Ticket Lawyer ready.
Make your appointment. We handle several counties in Texas.
DWI Lawyer Cost?
Each lawyer’s attorney fees will vary. For a DWI 1st they can vary from $3,000 to $5,000 to as high as $20,000 for some lawyers. (If someone is charging on the low end be cautious.) As the severity of the DWI case increases so can the attorney fees. For Misdemeanor cases the cost will generally be less than felony DWI cases. Felonies can start at a little under $10,000 and work their way depending on the level of felony and severity of the case.
–Class B misdemeanor is the lowest DWI charge. Then Class A misdemeanor, State jail felony, 3rd degree felony, 2nd degree felony, 1st degree felony is (the highest.)
There is a range of several thousand dollars. The price tag for subsequent DWI charges will usually cost more. DWI cases have punishment increases and the work it takes to keep the DWI charge off the driver’s criminal record is increased.
How Much Does a DWI Cost?
The better question might be how much does a DWI cost? By cost I mean that you may hire a cheap DWI attorney to handle your case and you are convicted of DWI. In the short run the amount of money you spent was minimal. In the long run spending more money for a quality Texas DWI lawyer would have been much, much cheaper. How? Avoiding a DWI conviction can prevent several future problems. Finding the best DWI lawyer will prevent that.
A DWI conviction can prevent promotions at work. Also let’s say you apply for a new position at a different company. Another person with similar qualifications is also applying for the job. The company may run a background check on you both and see that you have a DWI on your record. The other person does not have a criminal record. The DWI conviction on your record just helped the company decide to hire the other person.
The cost of the current attorney fees, fines, and insurance rates are the short term cost. When you consider the term “cost”, the idea of “long term cost” needs to be taken into account for the full picture.
Affordable DWI Lawyer
An affordable DWI attorney does not mean “cheap” attorney. Affordable might mean that the price is similar to the lawyer’s original set flat fee but the lawyer accepts a payment plan. I accept payment plans with a down payment. The payments need to be consistent and a certain amount set forth in the contract. I will charge a percentage more than the original total fee because of the extra issue of the payment plan.
How Much Does a Good DWI Lawyer Cost?
For a DUI or DWI First charge the cost will vary. Let’s say the DWI lawyer has several years experience and is skilled at getting reductions and dismissals. The client might be looking at a range of $5,000 up to $20,000 at the top end. By hiring a good, or even the Best DWI Lawyer, you are paying for skill, experience, and years of DWI training.
Finding a “good” DWI lawyer can be tricky. WIth out a friend who refers you to a trusted lawyer, you will need to ask questions. It will not be easy. Lawyer will lie and tell you that they have experience and skill. Many will just want to take your money. I realize that I am accountable throughout the whole process and want my clients to be satisfied with my representation in the end. I want them to feel like they can refer me to a family member and know that they will be in good hands.
Best DWI Lawyer
I have studied for years to fight Texas DWI cases and have spent thousands of dollars in training to defend DWI cases properly. I have years of worthy experience, skill, success with all the effort that I have spent training, I also have a desire to win for my clients. It is not about the money. I try really hard to get the best outcome for each client and their future. I train and study DWI defense issues ahead of time in order to get the absolute best result.
Bail for DWI in Texas depends on the level of the offense just like any other charge. Typically a Class B DWI first charge is about $2,000 surety bond. This means that $2,000 case will be needed to bond out of jail. A bondsman typically charges 10% of the bond amount to sign on as the surety for the bond.
So for a defendant $200 would be paid to the bondsman to bond out. This will a non-refundable $200 fee. If a person has $2000 cash it can be paid to the jail to bond out. It will refunded once the arrestee’s case is resolved.
DWI charges in Texas can be from Class B misdemeanors all the way up to 1st degree felonies. Each level of offense will increase the bond amount. A Class A misdemeanor will be be about $4,000 depending on the county. A state jail felony such as DWI with passenger under 15 years of age might be around $6,000 or $8,000.
The magistrate will look at specific facts of the arrest but usually the bond amount is determined by the level of the offense and a standard bond amount listed on a sheet in the magistrate office.
If a person is not a local or nearby resident the bondsman will sometimes charge more than 10%. The bondsman is at risk of a person not showing up for court. They will want to be protected from being sued for the bond amount if the arrestee no-shows to court. This is called a failure to appear for court. A bond revocation will occur in court bond forfeiture issued with a warrant. A lawsuit usually follows where the county will sue to get the bond amount that the magistrate originally determined.
What is a Personal Bond?
A magistrate “may, in the magistrate’s discretion, release the defendant on personal bond without sureties or other security.” This is nice for the accused and will save the person money if otherwise a surety was needed. An out of county magistrate may allow a personal bond except for certain violent offenses listed in the Texas Code of Criminal Procedure Chapter 17.
(A) Section 19.03 (Capital Murder);
(B) Section 20.04 (Aggravated Kidnapping);
(C) Section 22.021 (Aggravated Sexual Assault);
(D) Section 22.03 (Deadly Assault on Law Enforcement or Corrections Officer, Member or Employee of Board of Pardons and Paroles, or Court Participant);
(E) Section 22.04 (Injury to a Child, Elderly Individual, or Disabled Individual);
(F) Section 29.03 (Aggravated Robbery);
(G) Section 30.02 (Burglary);
(H) Section 71.02 (Engaging in Organized Criminal Activity);
(I) Section 21.02 (Continuous Sexual Abuse of Young Child or Children); or
(J) Section 20A.03 (Continuous Trafficking of Persons);
Those particular offenses would require the court where the case is pending to allow a Personal Bond.
If police decide to pull you over it should be done in the safest and soonest possible way. In Texas if an emergency vehicle drives behind you with audible sounds or visual lights you must immediately attempt to move to the right of the roadway.
Sec. 545.156. VEHICLE APPROACHED BY AUTHORIZED EMERGENCY VEHICLE.
(a) On the immediate approach of an authorized emergency vehicle using audible and visual signals that meet the requirements of Sections 547.305 and 547.702, or of a police vehicle lawfully using only an audible or visual signal, an operator, unless otherwise directed by a police officer, shall: (1) yield the right-of-way; (2) immediately drive to a position parallel to and as close as possible to the right-hand edge or curb of the roadway clear of any intersection; and(3) stop and remain standing until the authorized emergency vehicle has passed.
(b) This section does not exempt the operator of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.Amended by: Acts 2019, 86th Leg., R.S., Ch. 860 (H.B. 2837), Sec. 3, eff. September 1, 2019.
What Do I Do After I’m Pulled Over?
After being pulled over by the police they will want to see identification. Whether you think they had a right to pull you over or not the you should be ready to provide identification to the requesting officer when asked. For a driver issued a ticket for an alleged violation, the time to argue the case is in court-Not on the roadside.
You will want to keep your hands near the top of the steering wheel so there is no appearance of reaching for a weapon. Cops are shot during encounters. They know this happens and will presume every encounter with a stranger has that potential outcome.
Where to Pullover for Police on Highway
The usual place to pull over for the police is out of the flow of traffic and safely off the roadway. The officer will usually have a loud speaker and direct the driver to continue to further to another location if the current one will not do.
Usually pulling over to the right side of the road is the preferable location. Generally slower traffic is supposed to drive further to the right. (But we all see slow drivers in the passing lane so not everyone practices that.) There may be occasions where a driver is being pulled over and the only option is to pull over on the left. There may be a large space on the left or while driving on a one way street or highway.
The most important factor is getting out of traffic and giving the officer the appearance that the driver is attempting with effort to find a safe place to stop. Allowing the officer to safely park out of traffic would be a kind gesture to start off the conversation as well.
Sometimes it is useful in bargaining the case when the prosecutor knows that my client learned a lesson that impacted them to make a change.
Can a judge order you not to drink?
Yes they can. While a case is pending a person is either in jail or bonded out. The bond can have special restrictions such as a curfew, places not to go and whether or not alcohol may be consumed. A drinking and driving charge, at least in Texas, many times requires abstinence from alcohol consumption.
This can especially be a problem if there is an ignition interlock device in the accused’s car or an alcohol scram device on their ankle. The testing devices will catch alcohol consumption. This will then notify the supervising authority of alcohol consumption. The next step is a bond revocation motion filed in court that will need to be explained to the judge. There are occasionally false positive tests for different reasons. But the proof of this usually falls on the defense attorney to convince the court of this.
Should I Stop Drinking After a DUI
Yes. Even if a person does not drink much or very often it is a good idea to stop temporarily at least. On the off chance that the offense occurs again the situation just got exponentially more difficult to resolve for the lawyer.
A client who stops drinking during a pending case also gives me confidence that my client is willing to improve. I can feel confident speaking to the prosecutor. The court system can rest easy knowing that this will probably not occur again. This will also make it easier to get an acceptable resolution to the case.
Alcohol effects can be depressing for a person to recover from. With the stress of a pending alcohol-related crime a person can make the situation just that much harder on a day to day basis. It is a good time for a person to work on self-improvement during a pending court case.
How Can I Find Out if I Have a Failure to Appear for a Traffic Ticket?
In most cases you can enter your information on this DPS website and it will inform you of your violation and where the appearance should have been. Then it is advisable to call the court or contact an attorney to do so for you.
This site applies only to jurisdictions with a contract with the DPS. If the jurisdiction does not have a contract, then mostly likely the violation will not show up in the site search.
What Make a Ticket Enforceable Against Me in Court?
Art. 45.019. REQUISITES OF COMPLAINT. (a) A complaint is sufficient, without regard to its form, if it substantially satisfies the following requisites:
(1) it must be in writing;
(2) it must commence “In the name and by the authority of the State of Texas”;
(3) it must state the name of the accused, if known, or if unknown, must include a reasonably definite description of the accused;
(4) it must show that the accused has committed an offense against the law of this state, or state that the affiant has good reason to believe and does believe that the accused has committed an offense against the law of this state;
(5) it must state the date the offense was committed as definitely as the affiant is able to provide;
(6) it must bear the signature or mark of the affiant; and
(7) it must conclude with the words “Against the peace and dignity of the State” and, if the offense charged is an offense only under a municipal ordinance, it may also conclude with the words “Contrary to the said ordinance”.
(b) A complaint filed in justice court must allege that the offense was committed in the county in which the complaint is made.
(c) A complaint filed in municipal court must allege that the offense was committed in the territorial limits of the municipality in which the complaint is made.
(d) A complaint may be sworn to before any officer authorized to administer oaths.
(e) A complaint in municipal court may be sworn to before:
(1) the municipal judge;
(2) the clerk of the court or a deputy clerk;
(3) the city secretary; or
(4) the city attorney or a deputy city attorney.
(f) If the defendant does not object to a defect, error, or irregularity of form or substance in a charging instrument before the date on which the trial on the merits commences, the defendant waives and forfeits the right to object to the defect, error, or irregularity. Nothing in this article prohibits a trial court from requiring that an objection to a charging instrument be made at an earlier time.
(g) In a county with a population of more than two million that does not have a county attorney, a complaint for an offense under Section 32.41, Penal Code, must be approved by the district attorney, regardless of whether a collection proceeding is initiated by the district attorney under Section 32.41(e), Penal Code.
When Am I Entitled to Notice of The Charge Against Me?
Art. 45.018. COMPLAINT. (a) For purposes of this chapter, a complaint is a sworn allegation charging the accused with the commission of an offense.(b) A defendant is entitled to notice of a complaint against the defendant not later than the day before the date of any proceeding in the prosecution of the defendant under the complaint. The defendant may waive the right to notice granted by this subsection.
What if My Ticket Was Dismissed or I Already Paid it?
If your ticket is resolved you will need to contact the court where the ticket was filed. They are the only place with the authority to clear the citation.
I have represented people who did not realize that they had more than one ticket or forgot to take care of all the tickets they received after being stopped.
Can I Find Out if I Have a Warrant?
The DPS Failure to Appear program does not have information about warrants. They do sometimes go hand in hand though. I have more information on finding out if you have a warrant here http://erictorberson.com/texas-warrant-search. It is easier to find out about warrants in some counties more so than others unfortunately.
Who Do I Pay For My Violation?
Any payments need to go through the JP or municipal court regarding violations filed. They will know if any fees need to be paid to anyone else. Some courts accept online payments. There used to be links to city and county sites but as of right now the domains are showing error. You will need to do a search for the jurisdiction of your ticket and contact the court.
In many cases the court accepts payment by credit card by phone or online.
Can My Drivers License Renewal Be Denied For Non Traffic Violations?
Yes the Texas Traffic Code 706 authorizes the Texas DPS to deny renewal for a Texas drivers licenses for any violation of Texas courts.
What Do I Do if I Have a Drivers License Renewal Hold?
Two things need to happen. The warrant needs to be lifted and the omni fee needs to be paid. This will remove the drivers license renewal hold. An attorney can do this for you.
The removal of the warrant is done by an appearance bond by the attorney. This allows the case to be put back on the docket to allow an attorney to begin negotiating with a prosecutor to resolve the ticket or tickets.
The $30 omni fee is paid to the court. The court then send a release to the DPS to release any holds on the drivers license renewal.
Can I Just Pay My Ticket and Be Done With It?
Paying your ticket will create convictions on your record. This could affect your insurance and any consequences from further tickets down the road, so to speak.
My dog bit someone now what happens? Just because a dog bites someone does not automatically mean the dog is to blame. Dogs have a right to live in peace. Dogs have a right to protect themselves and their property.
If a Dog Bites Someone Will It Be Put Down?
In Texas the Health and Safety Code 822 covers Texas state wide law on dog bites. It is a confusing statute that probably could stand to be restructured. Chapter D of 822 speaks of a bodily injury dog bite. Chapter A covers Serious Bodily Injury (SBI) or Death to a person. An incident covered by Chapter D or A could result in the dog being euthanized.
Lets start with 822 Chapter D. It defines a dangerous dog as:
“Dangerous dog” means a dog that: (A) makes an unprovoked attack on a person that causes bodily injury and occurs in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own; or (B) commits unprovoked acts in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own and those acts cause a person to reasonably believe that the dog will attack and cause bodily injury to that person.
Notice that this part of the 822 statute speaks of an attack. It does not necessarily mean just a bite. It could be a scratch. (Though my only scratches are from a dog being too friendly.)
One of the first issues that I look at is was the dog provoked? Provocation is a defense for a dog attack. It allows the dog a fair shot at a just outcome. If you think about it if provocation was not included in the law then anyone could abuse or torment a dog. The dog would never be able to defend itself regardless of the how unfair the situation was. Kids could throw rocks at dogs. People could kick or hit dogs with objects for amusement. Unfortunately there are ill willed people on the planet who find it ok to abuse animals.
If the dog is in its enclosure then it is allowed some respect and space under the statute. Dogs are territorial not unlike people. If a stranger were to walk through your living room or bed room it would be to say the least startling.
Part B of the definition of dangerous dog is a troubling part of the statute. If a dog is out of his or her enclosure it has lost that protection under the statute. But the real grey area is that a person’s subjective idea or assertion about a dog’s mere intention puts the dog at risk. A dog does not even have to bite or attack and technically can be deemed dangerous. A person just has to say they “reasonably believed the dog would attack and cause bodily injury.”
Fo an accusation under part B it would be especially important to seek legal counsel of a dangerous dog attorney. This is a ‘subjective’ accusation and in many cases it is an angry neighbor or someone who may simply fear dogs from a previous traumatic experience.
A dog’s enclosure is not defined other than it is a place that the dog was being kept and that place was reasonably certain to prevent the dog from leaving on its own.
Texas Dangerous Dog Requirements
If a dog is declared dangerous from a bodily injury attack, the dog’s life is not out of danger. There are requirements that have to be met if the case is not appealed. If these requirements are not met then the state can legally seize and euthanize your dog. The Texas state requirements are as follows:
Sec. 822.042. REQUIREMENTS FOR OWNER OF DANGEROUS DOG. (a) Not later than the 30th day after a person learns that the person is the owner of a dangerous dog, the person shall:
(1) register the dangerous dog with the animal control authority for the area in which the dog is kept;
(2) restrain the dangerous dog at all times on a leash in the immediate control of a person or in a secure enclosure;
(3) obtain liability insurance coverage or show financial responsibility in an amount of at least $100,000 to cover damages resulting from an attack by the dangerous dog causing bodily injury to a person and provide proof of the required liability insurance coverage or financial responsibility to the animal control authority for the area in which the dog is kept; and
(4) comply with an applicable municipal or county regulation, requirement, or restriction on dangerous dogs.
(b) The owner of a dangerous dog who does not comply with Subsection (a) shall deliver the dog to the animal control authority not later than the 30th day after the owner learns that the dog is a dangerous dog.
(c) If, on application of any person, a justice court, county court, or municipal court finds, after notice and hearing as provided by Section 822.0423, that the owner of a dangerous dog has failed to comply with Subsection (a) or (b), the court shall order the animal control authority to seize the dog and shall issue a warrant authorizing the seizure. The authority shall seize the dog or order its seizure and shall provide for the impoundment of the dog in secure and humane conditions.
(d) The owner shall pay any cost or fee assessed by the municipality or county related to the seizure, acceptance, impoundment, or destruction of the dog. The governing body of the municipality or county may prescribe the amount of the fees.
(e) The court shall order the animal control authority to humanely destroy the dog if the owner has not complied with Subsection (a) before the 11th day after the date on which the dog is seized or delivered to the authority, except that, notwithstanding any other law or local regulation, the court may not order the destruction of a dog during the pendency of an appeal under Section 822.0424. The court shall order the authority to return the dog to the owner if the owner complies with Subsection (a) before the 11th day after the date on which the dog is seized or delivered to the authority.(f) The court may order the humane destruction of a dog if the owner of the dog has not been located before the 15th day after the seizure and impoundment of the dog.
Notice in the paragraph above that-“The court shall order the animal control authority to humanely destroy the dog if the owner has not complied.” This is extremely critical to know about before agreeing to let a dog be deemed a dangerous dog on the Texas Health and Safety Code statute!!
Serious Bodily Injury
Now 822 Chapter A puts the dog in more immediate risk of the court ordering euthanasia. For an attack, biting or mauling serious bodily injury case the statute states as follows:
(e) The court may order the dog destroyed if the court finds that the dog caused serious bodily injury to a person by attacking, biting, or mauling the person. If that finding is not made, the court shall order the dog released to:(1) its owner; (2) the person from whom the dog was seized; or (3) any other person authorized to take possession of the dog.
Defenses for the dog accused of causing serious bodily injury:
(f) The court may not order the dog destroyed if the court finds that the dog caused the serious bodily injury to a person by attacking, biting, or mauling the person and:
(1) the dog was being used for the protection of a person or person’s property, the attack, bite, or mauling occurred in an enclosure in which the dog was being kept, and: (A) the enclosure was reasonably certain to prevent the dog from leaving the enclosure on its own and provided notice of the presence of a dog; and (B) the injured person was at least eight years of age, and was trespassing in the enclosure when the attack, bite, or mauling occurred;
(2) the dog was not being used for the protection of a person or person’s property, the attack, bite, or mauling occurred in an enclosure in which the dog was being kept, and the injured person was at least eight years of age and was trespassing in the enclosure when the attack, bite, or mauling occurred;
(3) the attack, bite, or mauling occurred during an arrest or other action of a peace officer while the peace officer was using the dog for law enforcement purposes;
(4) the dog was defending a person from an assault or person’s property from damage or theft by the injured person; or
(5) the injured person was younger than eight years of age, the attack, bite, or mauling occurred in an enclosure in which the dog was being kept, and the enclosure was reasonably certain to keep a person younger than eight years of age from entering.
Unfortunately the law is not clear about whether the dog who is out of his or her enclosure is protected from a provoked act by someone. The chapter D bodily injury portion of the statute requires the attack causing bodily injury to be unprovoked. Here it seems that if an attack caused SBI then in all fairness the court would also look at whether provocation was present.
What is Serious Bodily Injury?
Serious Bodily Injury is defined as follows in the Health and Safety Code”
(2) “Serious bodily injury” means an injury characterized by severe bite wounds or severe ripping and tearing of muscle that would cause a reasonably prudent person to seek treatment from a medical professional and would require hospitalization without regard to whether the person actually sought medical treatment.
The next question, which is important, is what is hospitalization? It typically is overnight stay at the hospital according to healthcare.gov.
Serious Bodily Injury accusations put a dog’s life at risk of the judge ordering euthanasia in Texas. It is highly important to determine whether the bite really is serious bodily injury.
For comparative information Serious Bodily Injury (SBI) defined in the penal code and used for statutes with humans aggressors is as follows:
“Serious bodily injury” means 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.
What Happens If My Dog Kills Someone?
In Texas there is no protection for a dog who has killed someone. Your friendly dog could be saving you and your family from a raving mass murderer burning down your house. If your dog kills the psychopath, the Texas law requires your dog to euthanized. The Health and Safety Code is as follows:
(d) The court shall order the dog destroyed if the court finds that the dog caused the death of a person by attacking, biting, or mauling the person.
This unsympathetic law is surprising. Texas values private property rights. It seems that even a dog that kills a cattle rustler would be protected from state ordered euthanasia. It is not so though.
For more information contact dangerous dog lawyer Eric Torberson.
Is CBD oil Legal? Yes if it has not more than .3 THC, Tetrahydrocannabinol.
Tetrahydrocannabinol
What is Tetrahydrocannabinol?
It is THC. It is primary psychoactive chemical in Cannabis Sativa. Hemp is a strain of cannabis with a lower THC level and also containing Cannabidiol.
Cannabidiol. What is it?
Cannabidiol is CBD. This is a non psychoactive element in hemp that provides relief to conditions such as pain, insomnia and anxiety.
Is CBD Oil Legal in Texas?
Yes. It must contain materials extracted from hemp and not derived from the plant Cannabis Sativa L. The CBD oil must be sampled by an accredited laboratory. The lab must be accredited in accordance with International Organization for Standardized ISO/IEC 17025 or a comparable or successor standard. The testing must show a Delta-9 THC concentration of not more than .3 percent.
Federal Hemp Laws
Texas CBD oil must be produced in compliance with the federal definition of hemp in the Agricultural Code.
The term “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
How To Sell CBD Oil?
Retailers are required to register the Department of State Health Services to sell CBD oil. The owner, operator or person in control of sales must register each location owned, operated, or controlled unless that person is an employee of the registrant or independent contractor a registrant.
Registration is valid for one year and may be renewed yearly.
Under Sec. 443.203 of the Texas Agriculture Code, CBD oil sold must be manufactured in compliance with the Texas Hemp law or the retailer can be held accountable under the Business and Commerce Code Subchapter E Chapter 17 of the Deceptive Trade Practices.
A person violates the Texas Business and Commerce Code if he or she sells CBD oil that:
Contains harmful ingredients
Is not produced in compliance with 7 U.S.C. Chater 38, Subchapter VII or
Has delta-9 tetrahydrocannabinol concentration of more than .3 percent
“The manufacturing license for consumable hemp will not be available until the USDA approves Texas’ hemp plan. That plan is under development by TDA. State licensing rules and requirements relating to the manufacture of consumable hemp products may only be proposed after the approval of the plan by the USDA.
Until the plan is approved and rules are in place, current law applies. Only ingredients on the FDA’s Generally Regarded As Safe (GRAS) list or otherwise federally approved may be used in foods, drugs, cosmetics and dietary supplements. There are currently three hemp-derived products on the GRAS list; hulled hemp seeds, hemp seed protein and hemp seed oil. Manufacturers of these products are governed by Health and Safety Code Chapter 431. Manufacturers interested in producing consumable hemp products not containing CBD may currently apply for a DSHS food manufacturer license.”
State law and an ordinance are 2 different things. The ordinances in a particular city are different than a law governed by the state statutes.
Does a state law noise ORDINANCE exist? No, it does not under that name. An ordinance is local city law. Many cities have passed their own noise ordinances regarding noise level during certain times of the day within their city limits. The only Texas state law covering noise is DISORDERLY CONDUCT. It protects against unreasonable noise exceeding 85 decibels following being warned by a magistrate or peace officer.
-Important Note: According to the Texas D.O.C. statute noise is presumed to be unreasonable when exceeding 85 decibels after the noise maker receives notice from a magistrate or peace officer that the noise is a public nuisance.
How Loud is 85 Decibels?
The decibel level of noise is going to be relative. So here are some examples:
60
Conversation
75
Dishwasher
Risk of Losing Hearing
85
Heavy city traffic, school cafeteria, vacuum cleaner
95
Motorcycle
The higher the level the shorter the amount of time a person can endure the noise before hearing loss sets in.
Here is a link to Decibel Meters on amazon- Decibel Meters. A decibel meter can be handy to prove a noise violation or disprove a noise violation.
If I live Outside the City Limits Can I Report Loud Music?
If you live outside the city limits in Texas you can report loud music. The Texas disorderly conduct statute punishes the person making unreasonable noise in or near a private residence that they have no right to occupy.
DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:
5) makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;
(1) an act is deemed to occur in a public place or near a private residence if it produces its offensive or proscribed consequences in the public place or near a private residence; and
(2) a noise is presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance.
If you are in a city there is a good chance the city has adopted a code of ordinances. Many cities have their ordinances online and can be viewed on the city’s website. If you live in an unincorporated area of Texas there will not be a city ordinance to cover you. The only relief will be from the disorderly conduct statute about unreasonable noise that was discussed above.
If your city is a Home Rule Municipality then it is permitted to pass ordinances. A home rule city may do anything authorized by its charter that is not specifically prohibited or preempted by the Texas Constitution or state or federal law.
Texas Local Government Code 217 allows Type A general law municipalities to enforce certain laws allowed by statute such as Code 217 as follows:
Sec. 217.003. DISORDERLY CONDUCT. (a) The governing body of the municipality may prevent and may punish a person engaging in:
(1) trespass or breach of the peace;
(2) assault, battery, fighting, or quarreling;
(3) use of abusive, obscene, profane, or insulting language; or
(4) other disorderly conduct.
(b) The governing body may suppress or prevent any riot, affray, NOISE, disturbance, or disorderly assembly in any public or private place in the municipality.
(c) The governing body may restrain or prohibit the firing of firecrackers or guns, the use of a bicycle or similar conveyance, the use of a firework or similar material, or any other amusement or practice tending to annoy persons passing on a street or sidewalk.
(d) The governing body may restrain or prohibit the ringing of bells, blowing of horns, hawking of goods, or any other noise, practice, or performance directed to persons on a street or sidewalk by an auctioneer or other person for the purpose of business, amusement, or otherwise.
A type A general law municipality has no charter and may only exercise those powers that are specifically granted or implied by statute.
What is the Austin Noise Ordinance?
Part of the noise ordinance says a person may not make noise or play a musical instrument audible to an adjacent business or residence between 10:30 p.m. and 7:00 a.m. Other parts of the ordinance cover required permits. Also a person may not operate sound equipment at a business that produces sound: (1) in excess of 85 decibels between 10:00 a.m. and 2:00 a.m., as measured at the property line of the business; or (2) is audible at the property line of the business between 2:00 a.m. and 10:00 a.m.
In Austin, if there is a loud party causing problems the immediate matter can be referred to police by calling 311. Or if it can wait, a call can be made to a district representative. A district representative is a liaison between a police regional command and the community.
The residential area ordinances dealing with sound equipment are as follows:
A person may not use sound equipment that produces sound audible beyond the property line of a residence in a residential area between 10:00 p.m. and 10:00 a.m.
A person may not use sound equipment audible beyond the property line of a residence in a residential area that produces sound in excess of 75 decibels.
What is the Houston Noise Ordinance?
The Houston City Ordinance limits the level of noise by
(1) Residential property:
a. 65 dB during daytime hours.
b. 58 dB during nighttime hours.
(2) Nonresidential property:
68 dB at all times.
Daytime hours are 8 a.m. to 10 p.m.
The Houston ordinance penalizes up to $1,000 per offense or per hour. It can get pricey.
San Antonio Noise Ordinance
The San Antonio noise ordinance can be very pricey. If it is found that someone recklessly is in violation of the ordinance the fine can range up to $2,000.
A person is in violation of the ordinance if their noise exceeds 63 decibels on residential property measured from another’s separately owned property. When measured from separate ownership property, the noise cannot exceed 85 decibels for entertainment zoned property.
If you live in a neighborhood with an HOA there may be a noise warning in it. See below for an example of an HOA noise violation section of a real HOA agreement.
Noise Pollution
Some of the problems related to noise pollution include stress, loss of productivity, and decreased concentration.
Health Effects
The subject of noise pollution is recognized as such an important topic that the EPA talks about it:
“Noise pollution adversely affects the lives of millions of people. Studies have shown that there are direct links between noise and health. Problems related to noise include stress-related illnesses, high blood pressure, speech interference, hearing loss, sleep disruption, and lost productivity. Noise-Induced Hearing Loss (NIHL) is the most common and often discussed health effect, but research has shown that exposure to constant or high levels of noise can cause countless adverse health effects.”
Though the EPA recognized that is an important issue, in 1981 President Reagan decided that it was best handled at the state and local level and closed the Office of Noise Abatement and Control (ONAC).
Related Questions
Can I file a lawsuit against someone who is making too much noise?
It will be best to make that the last resort. It it will look better in court by attempting to contact the offending party first and asking them to turn down the music. Mailing a certified letter with specifics can either help stop the noise nuisance or it will help in court that you tried to settle this case pre-lawsuit. But sometimes asking just does not work.
Where should I measure the noise from?
In most cases, it is preferable to get a decibel meter and measure from the edge of your property next to where the noise is originating.
Noise violations can be expensive monetarily and emotionally. It is easier for the parties to come to an agreement before taking the situation to court. Courtesy between neighbors with regard to loud music is the best route. However, sometimes court is the only solution.
Where there is no successful compromise the time arrives for law enforcement or the HOA to get involved and begin writing warnings and tickets.
A Texas arrest warrant can be issued for several different reasons. If the police think a crime has been committed a detective will put together a description of evidence into a probable cause affidavit. It will then be used to support an application for an arrest warrant.
Once the arrest warrant is signed by a judge it will be input into the system. The person described in the warrant will be called to turn themselves in or be arrested by another means. Depending on the Texas county the police may show up at the person’s home to arrest them or it will linger until the person is stopped for a traffic violation.
Failure To Appear Traffic Ticket
If a person fails to pay a ticket for a traffic offense a failure to appear can be issued. In Texas, a person can check to see if there any such issues at http://www.texasfailuretoappear.com/search.php. This is not actually a warrant but can be detrimental for a person by keeping them from being able to renew a driver’s license.
Failure To Appear Warrant
If a person misses court for a Class B misdemeanor or above, a warrant can be issued by the court. The person’s bond is forfeited unless the person can show good cause about why they did not appear. This is where the term judgment NISI comes in. This is Latin for “unless”.
Some Texas counties have an online site that allows a person to check to see if they have a warrant in that county.
You will need to person’s last name and date of birth. Or if you know a cause number you may enter that in the space provide. Travis county’s website is the following link Travis County Warrant Search.
Williamson County, Texas does not have a way to check for warrants online. They do have a couple of options. A person can show up at the sheriff’s office with an ID and ask. (Beware that this way they will probably immediately arrest the person if they have a warrant out.) Another way to check is an attorney can fax a letter to the Williamson County Sheriff’s Office 512-943-1314 on letterhead. The letter asking the sheriff’s office to determine if a person has a warrant out for their arrest.
I will do this request for my clients who want to confirm whether they need to have a bondsman ready to bail them out of jail http://erictorberson.com/williamson-county-criminal-attorney. For privacy reasons, the warrants division at the sheriff’s office in Williamson County will not give out warrant information over the phone or by email. This is not uncommon for many counties. Maybe some counties think that people will elude the system if they find out they have a warrant.
If a person is not able to drive to a specific county to check if they have a warrant, there is another option. The person can bring their identification to the nearest law enforcement agency or jail and inquire about a warrant search. The person can just say they are doing it just to make sure. Better safe than sorry. If you think you have a warrant though, it might be best to already have a bondsman on hand ready to bond you out.
Harris County Warrant Search
According to the Harris County Sheriff’s Office website, a person can go to the Harris County District Clerk’s website and search for misdemeanor and felony warrants. You would need to generate a user name and password to login to the system. You can also search for ongoing cases in Harris County, both civil and criminal.
Dallas County Warrant Search
Dallas County has a convenient website to look up warrants. You can google Dallas County warrant search and it comes up. There is also an automated number with the Dallas Police Department to call and check for warrants.
Bexar County Warrant Search
A San Antonio Municipal warrant search website is available to search for San Antonio warrants. To search for court records in Bexar County there is a site to enter a person’s name. Otherwise to check for a warrant it may be necessary to bring an ID to the sheriff’s office and ask if there is an open warrant.
It’s not clear why there is not a single website for the whole state of Texas to check for any outstanding warrants. It seems like it would save a lot of resources and allow many people to get unresolved legal issues finished up. The state and local municipalities would see a rise in income from fines and court costs as well.
Lawyers, like many people, are asked all the time about what it is that they do for work. The lawyer will answer, “I practice law.” But the inevitable next question will be “what kind of law do you practice?” The person asking is usually eagerly awaiting to hear the answer. Sometimes they are not greatly impressed when they hear “criminal defense attorney.” Some people judge people who are arrested and accused of a crime. It is important that people know that an accused person is innocent until proven guilty.
Everyone in the United States is entitled to defend themselves after being charged with a criminal offense. They may also hire an attorney. The constitution importantly provides the right to know the charges brought against them and that they must be proven in a court of law by beyond a reasonable doubt. Mere accusations should mean nothing unless they are able to be proven beyond a reasonable doubt.
The founding fathers made sure that these rights were included in the U.S. Constitution known as The Bill of Rights. This was important to the people in the colonies while they were breaking away from the idea of tyranny and England’s rule. On top of that England was attempting to highly tax colonist goods. The sugar, stamp, and the Townsend Acts. Then there was the Tea Act of 1773.
The criminal defense attorney, once hired, has a duty to his or her client. The attorney has an ethical obligation to follow through with to the client. Each state may have a variation in their ethical rules.
This means to zealously represent the client and to keep confidential communications a secret. The attorney leads his or her client through the legal process and keeps the client informed about the procedures and current case status. The client needs to have all the information and be allowed to make an informed decision on whether to take a plea offer or have his or her case taken to trial.
The criminal defense lawyer is not a bad person even though he or she represents people charged with bad crimes sometimes. If our country ignored the constitution, we would be no better than a third world country with little or no laws. Some countries throw their citizens in jail for exercising their opinions. Or even worse they are beaten or killed. The legal process with its checks and balances exists for a reason. An innocent person going to prison is an unacceptable and tragic problem for the justice system. It needs to be adamantly avoided. The criminal defense attorney has an important role in the legal process and without the defense lawyer, the legal process would not be possible.
Black’s Law Dictionary defines perjury as the willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court or in an affidavit, or otherwise, such assertion being material to the issue or point of inquiry and known to such witness to be false.
The Model Penal Codeconsiders a person guilty of perjury if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made when the statement is material and he does not believe it to be true.
What is a Statement?
According to the definition in Texas Penal Code Chapter 37.01, a statement is any representation of fact.
What are Perjury Charges in Texas?
Penal Code 37.02 says a person commits perjury if he intends to deceive and knows of the statements meaning. He then makes a false statement under oath or swears to the truth of a statement previously made. And the statement is required or authorized to be made under oath. Or he makes a false unsworn declaration under Chapter 132 of the Civil Practice and Remedies Code.
What is an Unsworn Declaration?
An unsworn declaration dispenses with the need for a notary to stamp a signed affidavit form. It is helpful for inmates to waive service for family law matters while in jail. It also saves a person time from having to track down a notary to stamp a signature on a sworn affidavit. The declaration is enforceable under the Texas perjury statute.
Perjury Punishment
Perjury is a class A misdemeanor in Texas. The punishment is up to a year in jail and $4,000 fine. This includes pledging to act truthfully and faithfully before someone authorized to administer oaths constitutes a valid oath.
Completing a notarized affidavit or unsworn declaration and knowing any portion to be false, and swearing to its accuracy, becomes a crime. This does not include a witness giving an opinion as to the legal effect of the facts of testimony.
This means swearing directly to facts that the person knows to be false constitutes perjury.
Prosecution for inaccurate contributions and expenditure reports involving elections must be conducted under the Election Code.
What is Aggravated Perjury?
Aggravate perjury is Texas Penal Code Chapter 37.02, perjury, committed during an official proceeding and the false statement is material.
A statement is material if it could have affected the course or outcome of the official proceeding. It does not help the person testifying that he or she mistakenly believed the statement to be immaterial.
The extent of materiality is not important. Perjury may include a false statement to the facts that are collateral, remote, or circumstantially important.
Retracting Aggravated Perjury
There is a defense to aggravated perjury under Chapter 37.05. The actor must retract his or her false statement before completion of the testimony of the official proceeding. Also the retraction must be before it is manifest that the falsity of the statement would be exposed.
What is an Inconsistent Statement?
The Texas Penal Code Chapter 37.06 covers an act where a person makes statements under oath. When two of the statements cannot be true, the penal code defines that perjury or aggravated perjury has occurred. The crime may be perjury or aggravated perjury, whichever applies. The state does not need to prove which statement is actually false. Only one statement needs to be within the statute of limitations and it does not matter whether it is the true or false statement that occurs last.
Federal Perjury
This law applies when a person takes an oath before a tribunal, officer, or person in which a law of the United States authorizes an oath to be administered. The person will testify, declare, depose or certify truly, oral or written, truthfully.
A person who in any declaration, certification, verification, or statement under penalty of perjury willfully subscribes as true any material matter when he or she does not believe to be true is guilty of perjury.
The punishment for the federal crime of perjury is a maximum fine of $250,000 and not more than 5 years imprisonment.
What is Subornation of Perjury?
A person who procures another to commit perjury is guilty of subornation of perjury. The penalty for subornation of perjury is up to a $250,000 fine and a maximum of 5 years imprisonment.
Conclusion
The United States judicial system relies heavily on witness testimony. For obvious reasons, truthful statements by witnesses are necessary for the courts to come to just conclusions. Aggravated perjury in Texas can result in up to 10 years in prison and a maximum fine of $10,000. Federal perjury carries a maximum of 5 years imprisonment and a $250,000 fine.
Perjury in the US was adopted along with other common law from England. The English court of law “Star Chamber”, at the Royal Palace of Westminister, began punishing perjury at the end of the fifteenth century. The common law punishment could vary up to execution.
In Texas, a perjury charge may result in a more serious sentence if the perjury results in a death penalty execution. A perjury statement that results in death can be charged as murder. In some jurisdictions perjury that does not even result in death may still be sentenced up to life imprisonment for the person committing perjury.
Believe it or not, but any kind of animal cruelty was not a felony in Texas until 2001. It took Loco, a Dallas puppy, to be temporarily stolen and his eyes gouged out, to make some animal cruelty actions a felony.
Even though our pets are seen as family, animal protection laws in the United States and Texas are still catching up with other laws regarding the protection of children and other human rights. Texas civil law still regards dogs as property. But property of very little monetary value even though they are capable of love, personality, and loyalty.
It is fortunate that the criminal law sees the importance of preventing people from cruelly treating animals, by creating a more serious punishment than prior to 2001.
What is the Animal Welfare Act, 1966?
We cannot talk about Texas Cruelty Laws without first talking about earlier laws. In the United States federal law, to finally make a change, it took Coles Phinizy to write an article in Sports Illustrated in 1965. Pepper, a Pennsylvania dalmatian, was stolen from his yard and bought by a Bronx hospital. Pepper died during an experimental surgical procedure.
In 1965 New York US Representative Resnick introduced a bill requiring dog and cat dealers and the laboratories purchasing them to have a license. The bill also required USDA inspection.
A 1966 Life Magazine article, “Concentration Camp for Dogs,” prompted an investigation into a Maryland dog dealer’s deplorable living conditions for his dogs. This sparked a public the push for animal housing and care standards.
What is Cruelty To Nonlivestock Animals?
A nonlivestock animal is a domesticated living creature. Stray or feral dogs and cats are nonlivestock animals. Also included are any wild animals that were previously captured. This definition does not include a wild animal or obviously a livestock animal.
The mental state required to be guilty of this statute is intentional, knowing or reckless. Criminal negligence is not a mental state included in this statute.
Intentionally means a conscious objective or desire to engage in the conduct or cause the result. Knowing for a person takes place when he is aware that his conduct is reasonably certain to cause a result. Reckless conduct is a gross deviation from the standard of care that an ordinary person would exercise.
Animal Cruelty
It is an offense to cause an animal unjustified pain, suffering or cruelly kill or causes serious bodily injury to a nonlivestock animal. Also, to add confusion, a person cannot kill, poison, or cause serious bodily injury to an animal without the owner’s consent.
A person cannot unreasonably fail to provide necessary food, water, care, or shelter to an animal in a person’s custody. Nor can a person unreasonably abandon an animal in the person’s custody. It is also illegal to transport or confine an animal in a cruel manner.
It is an offense to cause bodily injury to an animal or cause an animal to fight another animal if either animal is not a dog. A person can’t use a live animal as a lure in a dog race or training, nor can a person overwork an animal.
The punishment is a Class A misdemeanor for the following offenses:
Lack of food, water, care or shelter.
Abandon, transport, or confine cruelly.
Seriously overwork animal.
The punishment is a State Jail felony for the following:
Cause an animal to fight another if either is not a dog.
Use of a live animal as a lure in dog race training or dog coursing on a racetrack.
The punishment is a 3rd Degree felony for the following:
Torture, cruelly kill, or cause serious bodily injury to an animal.
Kill, poison or cause serious bodily injury to an animal without the owner’s consent.
Abandoning an Animal
In Texas, and many other places, people abandon animals on dark roadways or in the country. It is a Class A misdemeanor with punishment up to a year in jail and/or $4,000 fine. This common occurrence seems to be acceptable to many. But dogs can starve or get hit on the roadway and die a miserable death.
Defenses to Cruelty To Nonlivestock Animals
It is a defense if a person has a reasonable fear of bodily injury to themselves or another by a dangerous wild animal. Or a person has a defense for bonafide experimentation for scientific research.
It is a defense to cruelty, while in the scope of employment, for a public servant, a person in electricity operations, or natural gas delivery.
The statute also mentions a defense under accepted legal wildlife practices solely for the purpose of fishing, hunting, trapping, wildlife management, or depredation.
Is it Illegal to Shoot a Dog in Texas?
It is only a defense to animal cruelty for a person who kills a dog during it injuring or killing livestock on the person’s land or while damaging crops and only at the time of either discovery.
What is Cruelty to Livestock Animals?
A livestock animal are cattle, sheep, swine, goats, ratites, poultry commonly raised for human consumption, horses, ponies, mules, donkeys, hinnies, native or nonnative hoofstock, and native or non native foul raised under agricultural practices.
The mental state required is easier on the offender than nonlivestock animals. Livestock animal cruelty only requires a mental state of intentionally or knowingly. Reckless mental state is not included here as it is in cruelty to nonlivestock animals.
Livestock Cruelty
It is illegal to cause unjustifiable pain or suffering to a livestock animal. A person in custody of a livestock animal must not fail unreasonably to provide necessary food, water, or care.
A person must not unreasonably abandon a livestock animal in the person’s custody. Nor transport or confine a livestock animal cruel or unusually.
The statute prevents a person from administering poison, without legal authority or permission, to a livestock animal other than cattle, horses, sheep, swine, or goats belonging to another. Also, a person shall not cause a livestock animal to fight with another livestock animal or nonlivestock animal.
It is also illegal to use a livestock animal as a lure in dog race training or dog coursing on a racetrack. A person can’t trip a horse or seriously overwork a livestock animal.
The punishment is a Class A misdemeanor for the following:
Failure to provide food, water or care for livestock in person’s custody.
Unreasonably abandon livestock animal.
Transport or confine livestock in cruel and unusual manner.
Overwork a livestock animal.
The punishment is a State Jail felony for the following:
Torture a livestock animal.
Poisoning another’s livestock animal other than cattle, horses, sheep, swine, or goats without legal authority or owner’s permission.
Fighting livestock animal with another livestock animal or nonlivestock animal.
Using live livestock animal as a lure in dog race training or dog coursing on a racetrack.
Tripping a horse.
Defenses to Livestock Cruelty
A person can trip a horse to identify the owner or provide vet care to the horse. It is also a defense if the person is engaging in bonafide experimentation research.
Generally accepted and solely for the purpose of legal fishing, hunting, or trapping wildlife management or depredation is a defense.
Cruelty to Animals Act, 1876
Cruelty to animals was recognized as a problem in Great Britain far earlier than in the United States. The parliament passed a bill also known as the Vivisection Act. It is the world’s first known legislation that regulated the treatment and use of live animals during scientific research.
Charles Darwin (1809-1882) was a proponent of animal welfare. He was disturbed by an animal’s unnecessary suffering. He wrote to the Oxford Zoologist in 1871:
“You ask about my opinion on vivisection. I quite agree that it is justifiable for real investigations on physiology; but not for mere damnable and detestable curiosity. It is a subject which makes me sick with horror, so I will not say another word about it, else I shall not sleep to-night.“
In The Descent of Man, Darwin tells of a touching story about a dog on a vivisectionist operating table, “In the agony of death a dog has been known to caress his master, and every one has heard of the dog suffering under vivisection, who licked the hand of the operator; this man, unless the operation was fully justified by an increase of our knowledge, or unless he had a heart of stone, must have felt some remorse to the last hour of his life (p. 115).”
Conclusion
It is interesting to see how animal law has evolved, through the years, compared to other movements and areas of law. It seems that animal welfare laws have never gotten the priority in relation to other societal needs and concerns. Especially compared to humans.
The fact that it took until 2001 to make gouging out a puppies eyes a felony in Texas lets a person know where the Texas legislature has stood on animal protection. This may be either a reflection of our voter’s priorities or lack of interest in the topic.
Regardless of the speed, animal protection laws are moving toward stricter and more serious punishment for people causing needless animal suffering.
If you need help or advice for your legal issue, do not hesitate to contact http://erictorberson.com.
If your dog is accused of biting or attacking a person or an animal, you need to first look at what law the accusation results from. Was it the Texas statute (law) or a local ordinance
There are several ways a dog can get in hot water. The law at the state level has statutes that cover Texas. Many municipalities have also made their own ordinances to punish dogs accused of scaring, attacking or biting people or other animals.
The Texas Health and Safety Code contains dog attack statutes. It divides dogs bites or attacks into 2 categories: bodily injury and serious bodily injury. A bodily injury attack is usually anything that causes pain. A serious bodily attack is defined as “severe bite wounds or severe ripping and tearing of muscle that would cause a reasonably prudent person to seek treatment from a medical professional and would require hospitalization without regard to whether the person actually sought medical treatment.”
Use the contact form to purchase my ebook for a bodily injury case where your dog has not been seized click the link below. This not be as helpful for a dog case where the dog is seized and accused of serious bodily injury. An ebook will be published for serious bodily injury soon
A 3rd way a dog can be deemed dangerous, is a situation where a dog did not bite or attack anyone. The dog “commits unprovoked acts in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own and those acts cause a person to reasonably believe that the dog will attack and cause bodily injury to that person.”
What Happens After My Dog Bites Someone?
If it is a bite that causes bodily injury, the victim may decide to complain to animal control. It is not a violation against the dog unless the dog is out of an enclosure that the dog is kept. The dog bite must also not be provoked by any means whether in or out of an enclosure. Provocation is a defense for a dog who bites or attacks .
For a bite that causes serious bodily injury, a dog within its enclosure is protected. If a person is under 8 years of age and the enclosure is reasonable certain to keep to keep a child 8 or under out than the dog has not violated the statute.
A dog causing serious bodily injury to a person 8 or older is protected if that person is trespassing in the dog’s enclosure.
Also a dog is protected if causing serious bodily injury while under a police officer’s control. Or a dog is alright protecting a person from assault. A dog protecting property from theft or damage is also protected from the statute.
What is Serious Bodily Injury?
The Texas Health and Safety Code defines serious bodily injury (SBI) as severe ripping and tearing of muscle that would cause a reasonably prudent person to seek treatment from a medical professional. It would also require hospitalization, even if the person did not did not seek treatment.
This is a vague area. So what is hospitalization. Healthcare.gov defines it as inpatient, and usually requires an overnight stay. So a day trip to the hospital to get stitches would not be serious bodily injury.
It really becomes a subjective standard and the definition gets ignored unless animal control officers stay familiar with the rules and ordinances. It can be lost on dog owners who represent themselves or who hire an attorney who does not look carefully at the law.
What is the Dog Facing in a Serious Bodily Injury Hearing?
It is critical for an attorney to investigate whether a dog bite is really serious bodily injury. The dog’s fate in a hearing could be a death sentence. It is heartbreaking to lose a case and have the judge order a death sentence. Especially if the dog had never bitten a person before. Sometimes judges will error on the side of caution or appease a complaining witness by sentencing a dog to death.
If a person is trespassing in the dog’s enclosure, a serious bodily injury attack is justified. It is based on fairness to the dog’s and as well as the homeowners rights. In our society trespassing is frowned upon.
What if a Dog is Accused of Killing Someone?
In Texas the law requires a dog to be killed if he or she kills someone no matter the reason. There is no discretion in the Health and Safety Code for a dog’s life. A criminal could be murdering the dog’s owner and burning their house down, but if the dog kills the murderer, the dog SHALLbe ordered destroyed. Texas law is surprisingly contradictory with regard to protection of people and property. A person can be justified in killing to protect life and property but not with a dog. I guess it will require a violent hypothetical like described above to encourage a smart lawmaker to change the law.
Why Do Cities Have Animal Ordinances if we Have State Law?
The Texas State Constitution allows municipalities of 5,000 or more to become a home-rule city. A city can create a municipal charter that allows a city to create ordinances. Many cities have animal ordinances included in their code. However “no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.”
This is a troubling area for animals in Texas. I have read several different city ordinances that contain death sentences for dogs accused of minor actions or none at all. These death penalty ordinances run the risk of being inconsistent with state law.
The state law requiring a dog deemed dangerous for a bite causing bodily injury or scaring someone does not allow the dog to be killed. Many cities have ordinances that allow the death penalty for a dog. For instance, a city in southern Texas, Nixon, has a vicious dog ordinance allowing death for a dog that may have a propensity to attack or has a dangerous disposition in their opinion.
Killeen Texas has an ordinance allowing the police or animal control to kill an animal with fierce, dangerous or vicious propensities that has not even bitten or attacked anyone. According to the Killeen Aggressive Dog Ordinance a dog can also be ordered euthanized by a judge “when unprovoked, chases or approaches a person upon the streets, sidewalks or any public or private property in a menacing fashion or displaying an apparent attitude of attack.”
Also, a Killeen judge can order a dog deemed aggressive to be permanently removed from the city limits within 10 business days.
This would mean that all those dogs that chased me on my bicycle as a kid could be ordered to be euthanized. It is in a dogs nature to chase things. An ordinance like this directly contradicts state law which does not allow euthanasia except in death or SBI cases.
What are the Texas Dangerous Dog Requirements?
Section 822.042 lists the requirements for the owner of a dangerous dog. In no later than 30 days the owner needs to accomplish some tasks as follows:
Register the dangerous dog with the animal control authority.
Restrain the dog on a leash in a person’s control or in a secure enclosure.
Obtain insurance or show financial responsibility in the amount of $100,000 to cover damages for a potential attack by the dangerous dog on a person. Show the proof to the animal control authority.
Comply with applicable municipal and county regulations, requirements or restrictions on dangerous dogs.
If a person does not fulfill the above by the 30th day, the dog is subject to being seized and impounded at a shelter at the owner’s expense. According to the Health and Safety Code, the judge SHALL order the dog killed ELEVEN days after delivery of the dog to the shelter, or the dog’s seizure, for failure to fulfill the dangerous dog requirements.
Shall means the judge HAS to have the dog killed. For someone in poverty or renting this can be a serious problem. The dog by then won’t even know why he or she is being put to death.
How is a Dog Determined Dangerous?
The Health and Safety Code says that if a person reports a dog bite that animal control may investigate the incident. The animal control will then receive sworn statements from witnesses. At that time the AC officer will determine if a dog is dangerous. The AC officer is required to let the dog owner know in writing.
The owner once notified in writing, has 15 days to appeal the dangerous dog determination of the animal control authority to a justice, county or a municipal court. The appeal requirements are as follows:
File a notice of appeal to one of the courts listed above.
Attach a copy of the determination from the Animal Control Authority.
Mail a copy of the notice of appeal to the Animal Control Authority.
If the appeal of the Animal Control Authority is filed in the justice court or municipal court, the dog owner may appeal to the county court after an adverse ruling about their dog. The dog owner is then entitled to a jury trial at the county court level under Health and Safety Code 822.0424.
A jury trial is vitally important in our judicial system. Thomas Jefferson’s 1801 quote sums it up pretty well:
“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
Conclusion
For a dog, to be considered dangerous, it is no small matter. It places the dog’s life in jeopardy in the future. It can unfairly result in a dogs execution at the local shelter. Many times the whole situation is based on a lie or the exaggeration of a person who is offended. It is critical that the dog owner give his or her dog a fighting chance to avoid a dangerous dog designation in court. If possible, hire someone with experience to defend your dog properly. Dogs don’t ask to be put in many of the situations we humans put them in. Dogs deserve due process.
If you need help or more information take a look at Home.
“Representative government and trial by jury are the heart and lungs of liberty.”
UPDATE!!! On March 28, 2022 the Texas Drone Law was ruled unconstitutional in the Western District of Texas in Austin, TX.
“U.S. District Judge Robert Pitman struck down a Texas drone law (one of the most restrictive in the U.S.), for violating the First Amendment’s protections of freedom of speech and the press.”
Texas drone legislation was introduced in 2013. Prior to that no state legislation existed in Texas. The 2013 Texas Drone Privacy Act makes it illegal to capture images of private property. The act was introduced and passed not long after it was discovered that the Columbia Packing Plant in Oak Cliff, Texas was dumping pig blood into the Trinity River.
City records showed that the packing plant was dumping “925,300 gallons of fluid a month into the creek.” They were temporarily shut down and the owners received several indictments which were later dismissed by the Dallas district attorney.
If this Texas drone law had been in effect in 2011, without one of the exceptions, it may have been a crime for the drone operator to capture the pollution images. His recreational drone footage could have been a class B misdemeanor and he might have been liable for a $10,000 civil penalty to the packing plant for distributing the imagery.
A possible exception that may apply to this pig blood scenario is exception number Government Code Chapter 423.002 (10)– filming at the scene of a spill, or a suspected spill, of hazardous materials.
Drone Footage of Private Property Cannot be Used as Evidence
Under the current law, not only can you be arrested, but also the images cannot be used as evidence against a private land owner/renter lawbreaker unless certain exceptions apply. A person in imminent danger qualifies as an exception. But any animal cruelty does not qualify as an exception and can result in the drone operator’s arrest and up to 6 months in jail with a $2,000 fine.
Drone Footage Now Illegal to Use Except to Prosecute Drone Operator
Chapter 423.005 makes it clear that drone footage captured in violation of this statute cannot be used against anyone except the drone operator to prove a violation of this statute.
Sec. 423.005. ILLEGALLY OR INCIDENTALLY CAPTURED IMAGES NOT SUBJECT TO DISCLOSURE. (a) Except as otherwise provided by Subsection (b), an image captured in violation of Section 423.003, or an image captured by an unmanned aircraft that was incidental to the lawful capturing of an image:
(1) may not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative proceeding;
(2) is not subject to disclosure, inspection, or copying under Chapter 552; and
(3) is not subject to discovery, subpoena, or other means of legal compulsion for its release.(b) An image described by Subsection (a) may be disclosed and used as evidence to prove a violation of this chapter and is subject to discovery, subpoena, or other means of legal compulsion for that purpose.
Images of Animal Cruelty Cannot be Used to Prove Animal Cruelty
The images taken of private property can only be used to prosecute the drone operator. They would not be allowed to be used as evidence of someone who was for instance, committing any cruel acts against animals. There are 21 listed exceptions that make private drone image capturing lawful and nothing covers anything having to do with animals.
Why would a person’s privacy rights supercede identifying and stopping animal cruelty? It is an interesting dilemma and nobody seemed to talk about it during the voting for this bill.
There was no effort to make a narrow exception where a person provides the evidence only to law enforcement. But on the other hand a problem with this might be where to draw the line. What happens if a drone operator spots a marijuana or other drug operation? Do amature detective drone operators become a wave of the future? Apparently proponents of HB 912 were worried about that.
What Constitutes an Illegal Search and Seizure?
Private property rights are an important issue for Americans. The constitution specifically discusses this in the 4th amendment. The 4th amendment is based on government intrusion and unreasonable searches and seizures. Intrusion by private citizens is not mentioned.
Police, or someone instructed by the police, cannot enter property without the owner’s permission. This can result in inadmissible evidence based on fruit of the poisonous tree. Illegal searches and seizures can be about a vehicle stop for an invalid reason to walking into someone’s house without permission or a warrant to be there.
Searches by Private Citizens
A private citizen gathering evidence is not subject to the 4th amendment. There are trespass laws that a private citizen can be charged with, but evidence of a crime gathered by the citizen is still admissible in court. For instance, a person could walk onto another’s property and photograph animal cruelty and it can be used by the police. This is as long as the police did not instruct the person to do this.
The 2013 drone law does not allow conducting a similar act, but instead filming with a drone camera. The only close exception that might apply to this would be Ch 423.002 (14) where a drone is on public property and at a height of no more that 8 feet filming without an amplified “image beyond normal human perception.”
Do I Have to Pay a Fine for a Civil Action?
On top of being arrested and possibly fined up to $2,000 that is not all. A person can also have to also pay a civil penalty of $10,000, court costs and reasonable attorney’s fees. If proven that the images have been disclosed, displayed or distributed with malice, then an actual higher amount of damages may be accessed based on the actual damages.
Attorney’s fees go to the prevailing party. So if the charges are not proven the accused drone operator may receive reasonable attorney’s fees from the accuser.
“Malice” is a specific intent by the defendant to cause substantial injury or harm to the claimant.
Also under Sec. 423.004 there is a $10,000 civil penalty for disclosure, display, distribution, or other use of an image instead of destroying the images. It can be costly because if “malice” is proven, the penalty can be more than $10,000. Theoretically, it could be 6 or 7 digits. Not to mention the judge “shall” award costs and reasonable attorney’s fee to the prevailing party. So for example, if someone captured animal cruelty taking place on private property and that footage caused a public outcry to boycott the claimant’s business, the drone operator would be liable to the loss of business. The damages could be astronomical.
Is it Illegal to Fly a Drone Over an Animal Feedlot?
In Texas it is now illegal to fly a drone over a “concentrated animal feeding operation” by less than 400 feet high. It should be noted that FAA regulations limit a drone flying altitude to a maximum of 400 feet. So flying drone over an animal feedlot will be break a law either way.
Can I Fly Over a Sports Stadium or Game?
The FAA Unmanned Aircraft Systems website is somewhat conflicting. It says that it is not permitted to fly a drone after one hour before or until one hour after the following-
-Major League Baseball -National Football League -NCAA Division One Football -NASCAR Sprint Cup, Indy Car, and Champ Series races
But later on the site mentions that a drone should not be flown within 3 nautical miles of a stadium or venue.
Another regulation, CFR 107.39, states that a drone cannot be flown over a human being unless they are in a covered building or vehicle. This is to protect them from the drone from falling on them.
Can I Shoot a Drone Flying Over My Property?
No you cannot. It is not illegal to fly a drone over someone’s property. Filming is a different issue. If the drone is low flying, possibly creating a safety risk than that may be a different situation. Shooting a drone can open a person up to a civil lawsuit and getting arrested for a federal offense.
A California small claims case took place in 2014 where a neighbor shot a homemade drone with a shotgun over the drone operators property. The judge ruled in the drone operators favor and awarded monetary damages for the cost of the drone.
A drone cannot be flown less than 400 feet over a critical infrastructure facility. In 2017 the drone statute expanded the definition of “critical infrastructure facility” to include a cell phone tower. The drone also cannot make contact with the cell tower or interfere with the operations. Keep in mind that FAA regulations limit a drone to a maximum of 400 feet.
Can the Police Use a Drone to Search My Property?
If the police can fit into certain exceptions, they can capture images by drone over private property. They must have a valid search or arrest warrant. They also can also video record in the immediate pursuit of someone with probable cause or reasonable suspicion that a person committed a felony. They can also document a felony crime scene.
The following is a further list including what the police can choose to record without the owners permission:
A human fatality
A motor vehicle with death or serious bodily injury or accident on state highway or federal highway
Searching for a missing person
For a high risk tactical operation posing a threat to human life
Border security within 25 miles of the U.S. border
Surveying to determine a state of emergency declaration
Public safety, protecting property, surveying damage during a state of emergency
Air quality sampling and monitoring by local or state law
At scene of a spill or suspected spill of hazardous materials
Fire suppression or rescuing a life in imminent danger
Do I have to Have a License to Fly My Drone?
Not by Texas state law, but you do under the FAA regulations. A pilot must be 16 years old and speak, read and write english. There is an exam that each pilot needs to pass in order to get their drone pilots license. Every 2 years a pilot needs to pass a recurrent test to maintain licensing.
Is This an Ag-Gag Law?
The timing of this law and the fact that it has an exception for humans in imminent danger, but does not mention animal cruelty, looks a lot like ag-gag.
Animal feedlots and packing houses stand to lose a lot of revenue if they are shut down for any period of time due to violations. Drones coming along and filming violations can be a real problem for business.
Privacy Rights
The bill was advertised to help the privacy of private property owners and renters. By emphasizing that side of the issue, the proponents avoided questions about who really stands to benefit from this bill. Big business is a big winner. Maybe marijuana plant growers are helped as well.
Animals in Imminent Danger Exception to Drone Filming
Perhaps there should have been an exception for filming with animals in imminent danger. There could be animal torture taking place and a drone would have been the only way to identify that it is taking place. Or a beloved pet may have run off and a drone would be a good way to search a large rural area.
These exceptions are not included and there is a good chance that they will not be until animals gain more status in our society.
Possible FAA 107 Rule Changes in 2019
There will be some possible changes coming to the FAA rules. One will be allowing drones to be flown over people under certain circumstances. Also there have been several requests for waivers to fly at night. A new proposed change would allow drones to fly as night.
Drones Finding Poachers in Africa
Drones are now being used to catch poachers in Africa. Most of the poaching happens at night, so the drones are using infrared camera equipment. Some estimate that the illegal poaching brings in $10 billion dollars. Some of this money goes to other illegal activity such as terrorism. This makes drone use in capturing poachers such a valuable tool. To stop criminals and for the African animals future survival as well.
Texas Government Code Exceptions to Filming with Drone
Sec. 423.002. NONAPPLICABILITY. (a) It is lawful to capture an image using an unmanned aircraft in this state:
(1) for the purpose of professional or scholarly research and development or for another academic purpose by a person acting on behalf of an institution of higher education or a private or independent institution of higher education, as those terms are defined by Section 61.003, Education Code, including a person who:
(A) is a professor, employee, or student of the institution; or
(B) is under contract with or otherwise acting under the direction or on behalf of the institution;
(2) in airspace designated as a test site or range authorized by the Federal Aviation Administration for the purpose of integrating unmanned aircraft systems into the national airspace;
(3) as part of an operation, exercise, or mission of any branch of the United States military;
(4) if the image is captured by a satellite for the purposes of mapping;
(5) if the image is captured by or for an electric or natural gas utility or a telecommunications provider:
(A) for operations and maintenance of utility or telecommunications facilities for the purpose of maintaining utility or telecommunications system reliability and integrity;
(B) for inspecting utility or telecommunications facilities to determine repair, maintenance, or replacement needs during and after construction of such facilities;
(C) for assessing vegetation growth for the purpose of maintaining clearances on utility or telecommunications easements; and
(D) for utility or telecommunications facility routing and siting for the purpose of providing utility or telecommunications service;
(6) with the consent of the individual who owns or lawfully occupies the real property captured in the image;
(7) pursuant to a valid search or arrest warrant;
(8) if the image is captured by a law enforcement authority or a person who is under contract with or otherwise acting under the direction or on behalf of a law enforcement authority:
(A) in immediate pursuit of a person law enforcement officers have reasonable suspicion or probable cause to suspect has committed an offense, not including misdemeanors or offenses punishable by a fine only;
(B) for the purpose of documenting a crime scene where an offense, not including misdemeanors or offenses punishable by a fine only, has been committed;
(C) for the purpose of investigating the scene of:
(i) a human fatality;
(ii) a motor vehicle accident causing death or serious bodily injury to a person; or
(iii) any motor vehicle accident on a state highway or federal interstate or highway;
(D) in connection with the search for a missing person;
(E) for the purpose of conducting a high-risk tactical operation that poses a threat to human life;
(F) of private property that is generally open to the public where the property owner consents to law enforcement public safety responsibilities; or
(G) of real property or a person on real property that is within 25 miles of the United States border for the sole purpose of ensuring border security;
(9) if the image is captured by state or local law enforcement authorities, or a person who is under contract with or otherwise acting under the direction or on behalf of state authorities, for the purpose of:
(A) surveying the scene of a catastrophe or other damage to determine whether a state of emergency should be declared;
(B) preserving public safety, protecting property, or surveying damage or contamination during a lawfully declared state of emergency; or
(C) conducting routine air quality sampling and monitoring, as provided by state or local law;
(10) at the scene of a spill, or a suspected spill, of hazardous materials;
(11) for the purpose of fire suppression;
(12) for the purpose of rescuing a person whose life or well-being is in imminent danger;
(13) if the image is captured by a Texas licensed real estate broker in connection with the marketing, sale, or financing of real property, provided that no individual is identifiable in the image;
(14) from a height no more than eight feet above ground level in a public place, if the image was captured without using any electronic, mechanical, or other means to amplify the image beyond normal human perception;
(15) of public real property or a person on that property;
(16) if the image is captured by the owner or operator of an oil, gas, water, or other pipeline for the purpose of inspecting, maintaining, or repairing pipelines or other related facilities, and is captured without the intent to conduct surveillance on an individual or real property located in this state;
(17) in connection with oil pipeline safety and rig protection;
(18) in connection with port authority surveillance and security;
(19) if the image is captured by a registered professional land surveyor in connection with the practice of professional surveying, as those terms are defined by Section 1071.002, Occupations Code, provided that no individual is identifiable in the image;
(20) if the image is captured by a professional engineer licensed under Subchapter G, Chapter 1001, Occupations Code, in connection with the practice of engineering, as defined by Section 1001.003, Occupations Code, provided that no individual is identifiable in the image; or
(21) if:
(A) the image is captured by an employee of an insurance company or of an affiliate of the company in connection with the underwriting of an insurance policy, or the rating or adjusting of an insurance claim, regarding real property or a structure on real property; and
(B) the operator of the unmanned aircraft is authorized by the Federal Aviation Administration to conduct operations within the airspace from which the image is captured.
(b) This chapter does not apply to the manufacture, assembly, distribution, or sale of an unmanned aircraft.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1390 (H.B. 912), Sec. 2, eff. September 1, 2013.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 360 (H.B. 2167), Sec. 1, eff. September 1, 2015.
Acts 2017, 85th Leg., R.S., Ch. 583 (S.B. 840), Sec. 1, eff. September 1, 2017.
Conclusion
The Drone Law is unconstitutional. We shall see if lawmakers try to tailor it another way in the future…
It is not hard to draw a line from bills introduced in congress to the preservation of big business. The question is: How much should our natural resources suffer to profit the bottom line?
Contact myself, Eric Torberson, for any questions about legal services.
Mailing drugs without a license is a federal offense. Sending drugs legally through the mail requires a license with the DEA. This is considered distribution of a controlled substance. To apply, a person or business must be of the following: manufacturers, distributors, researchers, canine handlers, analytical laboratories, importers, and exporters. Chapter 13 Title 21 U.S.C. 822 covers this registration process with the Attorney General in detail.
The registration period for list 1 chemicals (used in the manufacture of controlled substances) is for no less than one year or more than three years. Persons registered by the Attorney General may manufacture, distribute, or dispense controlled substances.
Possession of a controlled substance of list 1 chemicals has some exceptions to the requirement to register with the DEA such as the following:
An agent or employee acting in the course of employment for a registered manufacturer, distributor or dispenser.
Carrier or warehouseman possessing in the usual course of employment.
The ultimate user who possesses the controlled substance for his or her own use, household, or an animal owned or in the household.
To make matters more subjective, the Attorney General, by regulation may waive registration for certain manufacturers, distributors, or dispensers if it is consistent with public health and safety. Who is qualified to decide that? I don’t know the answer.
Does Registration Apply to Online Pharmacies?
Yes. Also the online pharmacy shall clearly display a declaration of compliance with Section 831 on it’s homepage. The homepage must have a hyperlink to page containing specific information about the pharmacy including address, contact information and licensing etc.
Can I get in Trouble for Shipping Edibles?
Depending on what the substance and quantity is will determine the punishment. Assuming the edibles are marijuana alone and the weight is less than 50 kilograms, the person may receive up to 5 years imprisonment and up to a $250,000 fine. The judgment shall also impose supervised release of at least 2 years in addition to imprisonment.
Yes. If caught by USPS, UPS or Fedex most likely the package will be referred to an investigator. Doing this is considered a 21 USC Section 841 Prohibited Act. This is knowingly or intentionally distributing a controlled substance.
For a person with a previous conviction accused of distribution, the punishment doubles to 10 years and $500,000 fine. The judgement shall include at least 4 years of supervised release in addition to imprisonment.
USPS POT INTERCEPTS 2012-2015
The statistics provided are not going to tell us how many shipments of drugs successfully were mailed and received at their destination. It is impossible to know how many packages successfully are mailed. The numbers only tell us what was detected and intercepted.
Shipping edibles does not have a much different position with the law than marijuana. However, shipping 50 to 99 marijuana plants regardless of the weight will increase the offense punishment to 20 years and a 1 million dollar fine.
What is the Drug Distribution Statute of Limitations?
It is 5 years. I sometimes get nervous phone calls from people worried about what they may have done illegally in the past. One which is “can I get in trouble for when I mailed marijuana a long time ago?”
The threat of prosecution decreases if a package is not detected. An investigation or surveillance will most likely take place with bigger and more frequent mailing operations. A one time small successful shipment most likely hasn’t triggered an investigation unless someone has been in contact instructing so.
The statute of limitation for “non capital” offenses is 5 years. This would apply to a shipment of marijuana. For different drugs that may involve minors or death, the limitations period may be longer. Each subsection of the law is different and needs to be read with the specific facts.
Is it a Crime for Receiving Illegal Drugs in the Mail?
Mens Rea is a latin term for guilty mind. There are 4 main recognized mental states- Intent, Knowledge, Reckless, Negligent. It is important to look at each statute in question to see if there is a mental state assigned. In Texas if a mental state is not assigned than it allows for at least a reckless mental state
It can be especially if you mailed them to yourself or it is traced to someone you know. It is possible that the package made it through the process without being detected and it is being watch under surveillance to see what you do with it. This is unlikely though if it is a small amount of marijuana.
Mental State or Mens Rea
The statute requires the mental state to be “knowingly or intentionally“. This means that it is not a strict liability crime. It requires knowledge or intent. It is important to remember this when considering your rights in the federal justice system.
“with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”
This may seem obvious, but at this point in time it is not wise to send drugs through the mail. It is a federal offense unless a person has the proper licensing. Maybe at a future time when all 50 states are legalized with marijuana it will be. The potential issue after legalization is taxing it before it is mailed to ensure the feds are getting their cut. But all that is on hold until the rest of the states catch up.
Can I Mail Prescription Drugs?
It is illegal to mail prescription drugs in most instances. But it is legal with the proper licensing that was mentioned above. You are not supposed to mail a loved one medication that they left at your house over the holidays. Even if you are mailing a legal prescription medication to yourself, there is no exception in the law allowing it. It would seem with our advanced society and legal system that we would have figured out a way around this. But not yet.
Controlled Substance Mail Back Program
Another exception to mailing prescription drugs is the §1317.70 Mail-back program. This allows for a unregistered “ultimate user” prescription possessor to dispose of prescription drugs by mailing them in pre addressed postage paid envelopes. The envelopes shall be spill proof and not marked as containing medication. The user shall not be required to provide any personal information when mailing the medication to a collector.
Technically it is illegal to mail someone “their” or yourself “your” prescription drugs. But should it be? Not really with a good reason. People do forget or run out of their prescription medication while away from home all the time. But this is just my opinion…
Criminal Defense Lawyer
This blog did not cover many of the other drugs, besides marijuana and prescription drugs, that may get mailed. There are many more punishments listed for the long list of illegal controlled substances that are illegally distributed by mail.
If you are facing any charges in this area please call me or contact me about your situation. http://erictorberson.com. I have very successful results for my clients. I try hard and care about my clients. Not every lawyer focuses on those qualities.
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