Learn what to do when police show up at your door in Texas

5 Things You Should Know When Police Come to Your House

Unless no one likes you and you have no friends, you’ve probably enjoyed a great house party at some point in your life. It doesn’t matter whether it was a house warming party, your vacationing parents accidentally left you home alone, or one of your friends told all the strangers at the bar that the after-party’s at your place. Occasionally, parties get a little out of hand and the unthinkable happens after someone pounds on the front door hard enough to knock pictures off the walls: “NOISE COMPLAINT. OPEN UP!”

Despite an immediate adrenal release, all your guests stand motionless and exchange nervous glances. Someone reaches over to turn down “Turn Down for What.” The homeowner quietly tip-toes to the peep hole to confirm the reality that everyone fears: it’s the cops! Questions race through his head.

Do I have to open the door to cops? Can they break down my door if I don’t open it? 

Flashlights shine through the blinds as the door-pounding becomes furious. “WE KNOW YOU’RE IN THERE. OPEN UP.”

Did they see us? Do I have to open it if they saw me? What if they say I have to open the door? 

The host winces as the cops dent his front door with their metal batons. Scared and confused, he opens the door and allows the cops inside his home. By opening the door, the homeowner has consented to police entry, and waived his protections under the Fourth Amendment.

This happens far too often, so I put together a short list of considerations for when cops come to your house in Texas.

  1. You have the most protection inside your home, so stay there!

Whether it’s your cell phone, glove box, body cavities, or bedroom closet, it just feels wrong when someone goes through your stuff without your permission. Recognizing the need for privacy, both the U.S. and Texas Constitutions have long protected the right of people “to be secure in their persons, houses, papers, and effects against unreasonable searches.” All searches by police must be reasonable. Unreasonable searches are illegal, which generally makes the evidence recovered through any unreasonable search inadmissible at trial.

But what makes a search unreasonable? The answer depends on where the search occurs, and the greatest protections we have against police searching are inside our homes. Courts apply the strictest standards when police officers invade a person’s house. But cops can get away with more when a person opens the door, and even more when a person steps outside, even partially through a doorway.

Warrantless Cops Outside the House

“But can’t they just open the door or kick it down?” I’m glad you asked, Kevin. Let’s see when they can legally enter your house.

  1. Cops almost always need a warrant to enter your home.

“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do.”

Unless one of the rare exceptions applies, cops need a warrant based on probable cause that has been signed by a judge before they can enter a person’s house. Warrantless searches in the home are presumptively unreasonable. In other words, courts initially view that police entry/searches are unreasonable and illegal if the cops didn’t get a warrant first. Practically speaking, this means that if the cops bust into a house party without a warrant and recover evidence (drugs, dead bodies, drunk minors, etc.), the judge probably won’t let them use the evidence against the homeowner.

If cops come to your home, you don’t have to talk with them. But if you choose to address the officers, ask them if they have a warrant. I’ve never heard of a house-party or noise complaint warrant, but if they say they have one, tell them to slide it under the door or hold it up to a window so you can verify that they have one.

If cops say they have a warrant, ask to see it through a window or under the door.

If cops say they have a warrant, ask to see it through a window or under the door.

Remember: at your front door, a warrantless cop can do no more than a citizen can do, which leads us to the next point.

  1. If they don’t have a warrant, you don’t have to talk to them or open the door.

The United States Supreme Court and the Texas Court of Criminal Appeals have both recognized that homeowners don’t have to talk to cops or answer the door if they don’t have a warrant:

“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.”

You don’t have to talk with the police. When you do decide to talk with cops, you begin to give them evidence that can be used against you. Rare are police reports or arrest videos where someone gives the golden answer to police questioning: “I don’t answer questions without my lawyer.” This answer invokes your rights, minimizes evidence, and cannot be taken as evidence against you (even though it feels like it might). So again I repeat: You don’t have to talk with the police.

You also don’t have to open the door to a warrantless cop. When you do, they might take it as an invitation to enter the home, leading to an argument later about whether the cop had consent to enter. Instead, keep the door closed/locked, turn down the music, and wait for them to leave.

Can the cops come inside?

Just wait it out, Kevin!

  1. But cops might be able to enter if there are “exigent circumstances.”

Cops have very limited authority to arrest people inside their homes without a warrant:

“An officer making an arrest without a warrant may not enter a residence to make the arrest unless: (1) a person who resides in the residence consents to the entry; or (2) exigent circumstances require that the officer making the arrest enter the residence without the consent of a resident or without a warrant.” Tex. Code Crim. Proc. 14.05.

There are only two options: a resident’s consent and exigent circumstances. “Exigent circumstances” is the legal term for some type of immediate emergency that reasonably requires the police to enter without a warrant because there is no time to get one.

Since Kevin is about to get his fingers bitten off by the Wet Bandits, this might be a valid exigency that would allow cops to enter a house without a warrant

Since Kevin is about to get his fingers bitten off by the Wet Bandits, this might be a valid exigency that would allow cops to enter a house without a warrant

Texas courts recognized three exigencies in a recent case:

“Exigent circumstances justifying a warrantless entry include 1) rendering aid or assistance to persons whom the officers reasonably believe are in need of assistance; 2) preventing destruction of evidence or contraband; and 3) protecting the officers from persons whom they reasonably believe to be present and armed and dangerous.”

Noise complaints by themselves are not an “exigent circumstance,” so they cannot support a warrantless entry by police. When cops smell marijuana or see kids drinking, officers often try to use the “destruction of evidence/contraband” exigency as a way to justifiably bust into a house party. However, courts have held that the smell of freshly burned marijuana is not enough, by itself, for a warrantless entry:

“In Steelman, we held that the odor of marijuana alone is not enough to allow officers to conduct a warrantless search. This is because it is clear under both United States constitutional law and Texas constitutional law that a warrantless search of a residence is illegal unless probable cause exists in combination with exigent circumstances.”

Enjoy those munchines, Kevin.

Enjoy those munchies, Kevin.

  1. Letting the cops inside is consent to entry, which waives many rights.

The fastest way to waive your rights is to open the door and invite officers inside your home. Consent to their entry waives all of your protections and grants the officers a temporary right to snoop. Anything the see/hear/smell inside after allowing them inside is fair game. Also, consent doesn’t have to be from the homeowner—it can be from anyone who the cops reasonably believe to be a resident.

Cops can get consent to enter from anyone that could be reasonably mistaken for a resident.

Fuller let the cops inside the house and then went upstairs to wet the bed. Typical Fuller.

Don’t consent to any search of the house even if you have nothing to hide. In fact, don’t open the door at all until you see a warrant. But even if the cops do violate the law or come inside when they shouldn’t, don’t resist or try to run away. Resisting or running will make your case much worse, and it could be dangerous. Instead, ask for a lawyer as soon as possible and let your attorney fight for you in court.

If you’ve been arrested, you need an attorney who is ready and willing to fight for you. Call Fort Worth Attorney Bryan E. Wilson at 817-454-5965 and get the Texas Law Hawk on your side today.

Image labeled for reuse from Huffington Post

Clearing Your Criminal Record in Texas: Expunctions and Nondisclosures

Convictions can last a lifetime. In Texas, criminal records can sometimes follow a person even when criminal charges never resulted in a conviction, which undeniably impacts that person’s life. For example, applicants face intense competition when seeking a desirable job or an invitation to attend college or graduate school. At the same time, the people who review these applications can access a large amount of supplemental information online if they have to make a close call. Employers have found one quick way to justifiably deny a person’s application by using a broad (and sometimes unfair) question about a person’s criminal background.

Take a moment to imagine Candidate A and Candidate B, who both have identical credentials and nailed their respective interviews. But let’s say some youthful transgressions by Candidate B led to an arrest for underage drinking while wearing a ridiculous outfit.

Bunny Costume (before)

General rule: cops don’t think bunny costumes are funny

If Candidate B has not taken advantage of his rights under Texas law to clear all records of his arrest, then a potential employer might find the damning mugshot even if the case was dismissed. Want to know how easy it is to find mugshots? Search one of the mugshot websites that get paid to collect and publish pictures of arrestees for profit without regard to the final outcome of the case.

Thankfully, Texas law allows people who meet certain criteria to move on from past mistakes through expunction and orders of nondisclosure. These remedies allow people to move forward with their lives after being wrongfully arrested or after successfully completing a deferred adjudication program.

Ways to Clear Your Texas Criminal Record

The two most important avenues to clearing a criminal record are expunctions and orders of nondisclosure. Both allow you to deny that you’ve been arrested for the expunged or nondisclosed offense under most circumstances.

Generally speaking, expunctions are for charges that have been dismissed without any community supervision (aka probation) while orders of nondisclosure are for charges dismissed after deferred adjudication community supervision.

Sealing vs. Destroying a Criminal Record

One big difference between the two is that expunctions require destruction of the records, while an order of nondisclosure essentially seals the records from discovery by most private agencies. So if you qualify for an expunction, that is the best route to choose because many government and licensing agencies are still allowed to view sealed records. Therefore, it may be wise to disclose offenses subject to an order of nondisclosure on applications for government jobs, licensing agencies, or higher education.

Many questions are ambiguous or overly broad, so consult an attorney when it is unclear how much you should disclose on an application or during an interview.

Job Applications: If Arrested, Please Crumple Immediately

Note that it is always best to talk with an attorney rather than attempting to file for an expunction or order of nondisclosure yourself for several reasons. Perhaps most importantly, Texas expunction and nondisclosure law changes often and is much more complicated than the broad overview in this post. You’ll want to speak with a lawyer who handles these types of cases because you only get one opportunity in court to qualify.

The qualifications for an expunction and an order of nondisclosure are different, so let’s take a look at each separately.

Expunction: Erasing Criminal Records in Texas

Chapter 55 of the Texas Code of Criminal Procedure contains most of the provisions for expunction, but others can be found in certain sections of the Family Code or specific provisions of the Texas Penal Code. Here is a short list of potential criminal record expunctions if a person meets certain qualifications:

  • Arrests for charges that result in “Not Guilty” verdicts
  • Arrests for crimes that were never charged
  • Criminal charges that were ultimately dismissed
  • Conviction of certain alcohol offenses by minors
  • Conviction of Failure to Attend School
  • Certain qualifying juvenile misdemeanor offenses
  • Arrests, charges, or convictions on someone’s record due to identity theft
  • Convictions that are later overturned by appellate courts
  • Convictions pardoned by the Governor or U.S. President

Note that each bullet point above has different qualifications for expunction eligibility, and certain cases may be completely disqualified from expunction. For example, the most common disqualification is when a person was arrested for one charge but was convicted of a lesser included offense. A conviction arising out of the same arrest could disqualify that person from expunging the arrest records. Chapter 55 expunctions also require that the court did not order community supervision or deferred adjudication for the offense, unless the offense is a Class C misdemeanor.

Sometimes expunctions are mandatory under the law, but others are subject to a judge’s discretion. However, if the court determines that a person qualifies for expunction, then the court will order that all criminal records for the arrest be destroyed. Article 55.03(2) of the Texas Code of Criminal Procedure states that after the order of expunction is final, “the person arrested may deny the occurrence of the arrest and the existence of the expunction order.” So if you were arrested for public intoxication but got the arrest expunged, you can legally deny that you were ever arrested for public intoxication.

To enforce expunctions, the statute creates criminal penalties for intentionally disregarding an expunction order by either failing to destroy the records or by releasing or disseminating expunged records. In other words, if they hold on to those records or distribute them after expunction, they can be charged with a crime. Nice to have the roles reversed, isn’t it? Next, let’s take a look at another way to clear Texas criminal records.

Order of Nondisclosure: Sealing Criminal Records in Texas

Even if a person can’t meet the strict expunction requirements, they may still qualify for an order of nondisclosure. Nondisclosure orders place strict limits on the disclosure of criminal records by criminal justice agencies. In other words, the records are not destroyed like an expunction, but private entities (like your future boss, your girlfriend’s dad, etc.) generally will not be able to see the arrest records. Here is a simplified formula for nondisclosure:

Successful Deferred Adjudication + Waiting Period + No Disqualifying Criminal History + “Best Interest of Justice” = Nondisclosure

Section 411.081 of the Texas Government Code lists the eligibility requirements for orders of nondisclosure. To put it simply, a person must have successfully completed a deferred adjudication program on a qualifying crime. The following must occur for a person to be eligible for an order of nondisclosure:

  1. A person must plead guilty or nolo contendere to a qualifying misdemeanor or felony;
    • Certain crimes are ineligible for orders of nondisclosure even if a person completed a deferred adjudication program and had the charge dismissed. Section 411.081(e) lists certain crimes that are ineligible for orders of nondisclosure. Some examples include crimes of family violence and offenses that require registration as a sex offender.
  2. The judge must defer adjudication and sentence the person to community supervision (aka probation) without adjudicating guilt;
    • There is a distinction between “straight” probation and “deferred” probation. Straight probation is a sentence that keeps a person out of jail as long as they complete a laundry list of requirements in a plea bargain. Deferred probation does the same thing but adds the benefit of a possible order of nondisclosure.
  3. The person must successfully complete the deferred adjudication requirements; and
    • This means compliance with all requirements for a certain time period. Generally, more serious crimes carry longer sentences of probation, more requirements from the court, and stricter sentences if a person fails to complete the program.
  4. The judge must dismiss the proceedings and discharge the person from community supervision.

There may be a waiting period after discharge from community supervision depending on the type of crime:

  • Felonies: 5 years
  • For misdemeanors under certain chapters: 2 years
    • These include misdemeanors under Texas Penal Code Chapters 20 (kidnapping, unlawful restraint), 21 (sexual offenses), 22 (assaultive offenses), 25 (offenses against the family), 42 (disorderly conduct and related offenses), and 46 (weapons)
  • For all other misdemeanors: No waiting period

But sometimes other criminal history can disqualify a person from an order of nondisclosure. Here are some examples that will disqualify a person from an order of nondisclosure:

  • Convictions or deferred adjudications for another offense during the period of community supervision or during the applicable waiting period described above;
    • Note: this does not include offenses in the Transportation Code punishable by fine only, like a speeding ticket.
  • If there are any convictions or deferred adjudications for the following crimes, a person is ineligible for an order of nondisclosure:
    • Offenses that require registration as a sex offender;
    • Offenses involving family violence;
    • Offenses under any of these sections of the Texas Penal Code: 19.02 (murder) 19.03 (capital murder); 20.04 (aggravated kidnapping); 22.04 (injury to child, elderly, or disabled); 22.041 (abandoning/endangering child); 25.07 (violating certain court orders); 25.072 (repeated violations of certain court orders); or 42.072 (stalking).

Lastly, the judge must find that issuing an order of nondisclosure would be “in the best interest of justice.” This element allows a judge wide discretion to grant or deny the order, and this wide latitude can be dangerous to an otherwise qualified candidate. Therefore, even if you complete your deferred adjudication and get the charge dismissed, it is probably a bad idea to flip off the judge and probation officer on your way out of the courtroom.

Remember: If you are a criminal defendant, showing politeness and respect to all players in the criminal justice system will almost always help your case. Let your attorney do the fighting.

If the judge finds that all these elements have been proven, he or she will grant the order of nondisclosure, which commands the DPS and other agencies to seal records to everyone except criminal justice agencies and the following entities (as of September 1, 2014):

(1) the State Board for Educator Certification; (2) a school district, charter school, private school, regional education service center, commercial transportation company, or education shared service arrangement; (3) the Texas Medical Board; (4)    the Texas School for the Blind and Visually Impaired; (5) the Board of Law Examiners; (6) the State Bar of Texas; (7) a district court regarding a petition for name change under Subchapter B, Chapter 45, Family Code; (8) the Texas School for the Deaf; (9) the Department of Family and Protective Services; (10) the Texas Juvenile Justice Department; (11) the Department of Assistive and Rehabilitative Services; (12) the Department of State Health Services, a local mental health service, a local mental retardation authority, or a community center providing services to persons with mental illness or retardation; (13) the Texas Private Security Board; (14) a municipal or volunteer fire department; (15) the Texas Board of Nursing; (16) a safe house providing shelter to children in harmful situations; (17) a public or nonprofit hospital or hospital district; (18) the securities commissioner, the banking commissioner, the savings and mortgage lending commissioner, the consumer credit commissioner, or the credit union commissioner; (19) the Texas State Board of Public Accountancy; (20) the Texas Department of Licensing and Regulation; (21) the Health and Human Services Commission; (22) the Department of Aging and Disability Services; (23) the Texas Education Agency; (24) the Judicial Branch Certification Commission; (25) a county clerk’s office in relation to a proceeding for the appointment of a guardian under Chapter XIII, Texas Probate Code; (26) the Department of Information Resources but only regarding an employee, applicant for employment, contractor, subcontractor, intern, or volunteer who provides network security services under Chapter 2059 to: (A) the Department of Information Resources; or (B) a contractor or subcontractor of the Department of Information Resources; (27) the Texas Department of Insurance; and (28) the Teacher Retirement System of Texas.

Once the order of nondisclosure is final, a person “may deny the occurrence of the arrest and prosecution to which the information relates.” However, it should again be noted that the wiser option would be to disclose an arrest on certain applications if requested because they may still be able to view the information as one of the authorized entities above. Also like expunction law in Texas, there are criminal penalties when someone knowingly violates a court’s order by disclosing protected information to unauthorized entities.

If you need a Texas expunction and nondisclosure attorney, contact attorney Bryan E. Wilson at 817-454-5965 and get the Texas Law Hawk on your side today.

130609120518-moore-rick-perry-story-top

Q&A on Governor Rick Perry’s Indictment and Ham Sandwiches

In a surprising turn of events, Texas Governor Rick Perry was recently indicted by a grand jury for felony charges of abuse of power and coercion. Let’s learn about Texas grand jury indictments and see what this means for Governor “Good Hair” Rick Perry.

1. What is a Texas grand jury?

In Texas, a grand jury is a panel of 12 county citizens selected by either a district judge or jury commissioner. Like regular jury members, each must meet strict qualifications such as being able to read and write. Grand jurors cannot be felons, nor can they be convicted of or under accusation of theft. Once the grand jurors are assembled, they are sworn in before any grand jury proceedings can begin.

2. What does a grand jury in Texas do?

Instead of deciding on guilt or innocence at trial, grand juries are assembled long before any trial occurs. Once assembled, a grand jury reviews evidence to determine if someone should be charged with a crime, and if so, what crime(s) should be charged. Texas law has made grand jury proceedings notoriously secretive to protect grand jurors from influence or danger, and also to protect people under investigation for felonious conduct who are later exonerated of any wrongdoing. The secretive nature of grand jury proceedings is the reason that few people heard about these allegations against Rick Perry before he was actually indicted.

Texas Grand Jury

A prosecutor will present evidence to the grand jury by calling witnesses and presenting documents. The grand jury can also subpoena witnesses if they desire. Defense attorneys have no general right to attend the hearings, but sometimes the prosecutor will consent to a defense attorneys presenting their version of the facts. After hearing the evidence, the grand jury makes the final decision on whether a person should be charged.

3. What does it mean to be indicted on a crime?

After hearing the evidence presented, a grand jury will vote on whether to indict a person. If 9 or more of the 12 jurors cannot collectively agree that adequate grounds for prosecution exist, then the person under investigation is not charged with a crime. Instead, that person is “no-billed,” which means he or she is not charged with a crime.

However, if 9  or more out of the 12 grand jurors agree that a person should be charged with an offense, then the grand jury foreman will sign and return a “true bill” indictment, which is a legal instrument that officially charges someone with a crime. The indictment itself is usually brief and does not need to contain the specific evidence that the grand jurors found persuasive; Governor Perry’s two-count indictment only took up two pages. Though short in length, many indictments contain defects that attentive defense attorneys can attack by using a “motion to quash.”

4. Is it easy to be indicted by a grand jury?

There is a saying that any halfway decent (or unethical) prosecutor can get a grand jury to “indict a ham sandwich.” This expression comes from the idea that it is not hard to get a grand jury to indict someone.

Indict a Ham Sandwich

Can you indict my ham sandwich with mustard instead of mayo?

The amount of proof necessary for an indictment is far lower than the amount of proof necessary for a conviction. All the grand jury needs to find is “probable cause” to believe Rick Perry committed the crimes. Here is a scale to illustrate some burdens in the law:

Texas Burdens of Proof

  • “Reasonable suspicion” is the amount of proof necessary to pull someone over or detain them momentarily; this is lower than the “probable cause” standard below, but requires more than just a “hunch” that someone committed a crime.
  • “Probable cause” means “sufficient specific articulable facts and circumstances” that would lead a reasonable person to believe Rick Perry committed a criminal offense. This threshold is the amount of evidence necessary to arrest someone or search their house and car.
  • “Preponderance of the evidence” simply means “more likely than not” so you can think of it like the 51-yard line on a football field. This is the amount of proof necessary to sue someone in civil court and empty their bank accounts to pay for damages.
  • “Clear and convincing evidence” is an amount of proof “that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations.” This is the amount of proof necessary to take away someone’s children, but still less than beyond a reasonable doubt.
  • “Beyond a reasonable doubt” is the highest standard recognized in Texas law, but is left undefined by the statute. This standard is so incredibly high because it is the amount of proof required to find someone guilty of an offense and potentially take away their freedom. The presumption of innocence is a constitutional guarantee that protects us from any accusations until the government proves their case beyond every single reasonable doubt.

As you can see, the standard is fairly low on the scale of burdens in our legal system. Also, the rules of evidence do not apply in grand jury proceedings, which makes the burden even easier for prosecutors to get a “true bill.”

5. What happens now that Governor Rick Perry has been indicted?

After an indictment, a person has been officially charged with a crime. Like any other indicted person, Rick Perry had to turn himself into authorities, get booked into jail, and post bond. In his case, both the prosecutors and defense attorneys agreed that Rick Perry isn’t going to flee the country, so they agreed to a personal recognizance bond, which allows him to be released without posting a bond as long as he returns for his future court date. Unless the indictment is quashed or the prosecutors agree to a dismissal, Governor Perry must face the charges against him.

6. What crime was he charged with?

Rick Perry has been indicted for violating § 39.02(a)(2) of the Texas Penal Code in count one, which is “Abuse of Official Capacity.” Because the statute has increasing levels of punishment depending on the value, this charge is a first degree felony since he the allegedly misused funds are more than $200,000. First degree felonies are punishable by 5-99 years in jail and up to a $10,000 fine.

Court two of the indictment alleges that Rick Perry violated § 36.03(a)(1) titled “Coercion of a Public Servant or Voter.” This is a third degree felony, so if he is convicted of this count, he will face a punishment of 2-10 years and up to a $10,000 fine.

However, even if convicted, an extended jail sentence is unlikely since the Governor probably doesn’t have a long criminal history, if any. Here are the indictments against Governor Rick Perry:

Rick Perry Felony Indictment

Rick Perry Felony Indictment page 2

7. Why was Governor Perry charged with these crimes?

Depends on who you ask. Here are the objective facts that both sides will probably agree on:

In April of 2013, Travis County District Attorney Rosemary Lehmberg was arrested for Driving While Intoxicated and subsequently convicted of the same. She served her sentence and returned to work in her elected position as the D.A. Rick Perry expressed his desire that Mrs. Lehmberg resign from her position. She did not resign. Subsequently, Rick Perry vetoed $7.5 million of funding that would have otherwise gone to the Public Integrity Unit; he indicated that the reason for the veto was related to Mrs. Lehmberg’s refusal to resign.

Supporters of Perry will argue that this is a cheap political move to cancel out Governor Perry’s prospect as a potential presidential candidate. People who are less fond of Rick Perry will argue that the grand jury had no motive whatsoever, and at least 9 of the 12 agreed that Governor Perry committed two felonies after listening to all of the evidence presented.

8. What defenses can he use?

Rick Perry has many defenses available. Defenses can generally be separated into factual and legal defenses. Factual defenses contest what actually happened (the facts), while legal defenses argue that the law will not allow charges to continue.

Indictments occur at an early stage in the criminal process, so right now Governor Perry is limited to legal arguments. Almost immediately, Governor Perry’s attorneys filed a pretrial writ of habeas corpus, arguing that the indictment should be dismissed for many reasons, some of which have some validity. For example, the second charge on the indictment did not negate a statutory exception, which is a requirement under Texas law. However, even though some of their arguments have merit, it is rare to have an indictment dismissed with a habeas petition this early. He may have to wait for a motion to quash the indictment before a court will consider most of his legal and factual defenses.

9. Will Governor Rick Perry be convicted?

It is far too early to tell because no one knows the full story at this point except the grand jury and prosecutors. But if we assume that the evidence presented is just Governor Perry’s veto and commentary about Mrs. Lehmberg, then he is unlikely to be convicted of anything for several reasons.

From a legal standpoint, Governor Perry has a strong separation of powers argument and may win an argument that the statute is unconstitutional as applied. At this point, it appears that the basic facts are largely undisputed, so the trial may become a pure public policy argument. However, I believe it is highly unlikely that this case will actually end up in front of a jury.

Texas DWI Law and Defenses

New Trick to Beat a Texas DWI?

After Getting Pulled Over for DWI in Texas, Will Chugging Liquor Help Your Case?

When it comes to beating a DWI charge, a wide variety of untested strategies float around internet forums awaiting suggestible readers. An older example is the “stuff your mouth with pennies” trick, which would supposedly beat a breathalyzer every time. Another is masking the odor of alcohol with mustard packets, which Ludacris recommends you keep in your car at all times.

But the newest “DWI-Hack” involves chugging liquor after getting pulled over and has gained some traction recently. The scenario I’m given usually goes like this:

What would happen if a drunk person got pulled over, jumped out of the parked car with an unopened bottle of their favorite liquor, opened it in front of the officer, and chugged as much as they could before the cop stops them? If they drink enough of it quickly, then there’s no way the cops can prove that person was intoxicated while driving, right?!

Chugging Liquor During Texas DWI Stop

Chugging liquor after being stopped for a Texas DWI: an infinitely stupid idea.

I always ask them if they want the short answer or the long answer. Here’s the short answer to the “liquor chugging” question above: chugging liquor in front of cops is always a bad idea. Below is the expanded answer, which (1) discusses why the scenario above presents a number of interesting issues in criminal law; and (2) offers some ways to give yourself a stronger chance in court after a DWI arrest. Spoiler alert: they don’t involve guzzling booze in front of police.

The Burden of Proof and Elements of DWI.

Here’s why the scenario above presents (at least a theoretical) challenge to the prosecutor on proving all the elements of Driving While Intoxicated. In every criminal trial, the prosecutor must prove every single element of the charged offense beyond a reasonable doubt. Section 49.04 of the Texas Penal Code lists the elements of DWI that the prosecutor must prove beyond all reasonable doubt. The prosecutor must offer sufficient evidence to show that, on or about a certain date, a person:

  1. Was intoxicated
  2. While operating
  3. A motor vehicle
  4. In a public place.

If the prosecution fails to prove any one of the elements above, then the jury or judge must acquit the defendant of the charge.

I will briefly discuss elements 1, 3, and 4 before discussing the focus of this post, which surprisingly is element 2. First, the “intoxicated” element requires the prosecutor to prove that (1) the defendant had a blood alcohol content of .08 or greater; or (2) the defendant did not have “the normal use of mental or physical faculties” because of alcohol, drugs, or a combination of any substances. This element is very important for most cases, so I’ll save the detailed discussion of the “intoxicated” element for another post. Remember: a BAC of .08 or higher is not always necessary to be convicted of DWI. The statute allows a conviction to stand on drugs alone—even legally obtained prescription drugs. Therefore, it may not be a good idea to list off a plethora of (or any) medications you are currently taking.

Remember: you have the right to remain silent even if you’re not under arrest. Check out another one of my posts if you want to learn about your constitutional rights when interacting with police. Now let’s look at the “while operating” element in greater detail.

Chad Bradley’s DWI Life-Hack: Chug Fireball Whiskey!

For the remainder of this post, we’ll assume that the person in the liquor-guzzling hypothetical above is Chad Bradley, who was driving down West 7th Street in Fort Worth (a “public place” under § 49.04) in his 1999 Geo Metro (a “motor vehicle” under § 49.04). On the way home from Chummy’s last Friday, Chad rolled through a stop sign and a few seconds later saw those heart-stopping blue and red lights flash in his rear-view mirror. He had several drinks shortly before leaving the bar but wasn’t sure if he was intoxicated at that point. After pulling over, Chad turned off his car and looked down at the unopened bottle of Fireball Whiskey that he kept in his car for party-related emergencies.

Don't chug liquor after being stopped for DWI

Chugging liquor after being pulled over: a way to guarantee things will go badly.

Chad remembered reading a post from an online forum that discussed a secret way to beat a potential DWI conviction: after pulling over, crack open a bottle of liquor and chug it like it’s going out of style. With his bottle of Fireball staring back at him from the passenger seat, Chad was ready to become a legend. As the officer approached, Chad calmly exited his Geo, winked at the officer, and guzzled down almost half of the bottle. Feeling cocky, Chad said “Good luck proving how many margaritas I had after that, sucker!”

Let’s examine the good and bad facts, starting with the good facts. By drinking liquor after he had operated the car, Chad created, in theory, a small problem for his prosecution on proving that he was intoxicated “while operating” the motor vehicle. There’s no doubt he’ll be drunk in a few minutes, but how can a prosecutor prove that Chad was intoxicated while operating the car? 

On these limited facts, Chad might argue that the prosecutor can’t prove that he was intoxicated while operating his Geo Metro. In other words, there might be a reasonable doubt as to whether he was drunk while driving or just really drunk after he had pulled over, parked, and turned up a bottle of cinnamon whiskey. He could argue that he’s only guilty of a Public Intoxication charge after the stop but certainly not a DWI. Remember: the burden of proof always remains on the prosecutor to prove every single element of a criminal offense beyond a reasonable doubt. Chad also might argue that the arresting officer only observed indications of intoxication due to the liquor he had quickly consumed after the operation of the Geo Metro was already completed, thereby requiring dismissal of the DWI charge or an acquittal at trial. Armed with this great theoretical argument, Chad is in the clear, right?

Wrong! Let’s look at the bad facts. First of all, Chad got out of the car, winked at the officer, and then chugged liquor. Disrespecting police officers never helps a person’s case, even if the officer is being a jerk. Chad clearly has not seen Chris Rock’s video “How to Not Get Your Ass Kicked by the Police”:

 

 

In the video, Chris Rock shows many ways to not get beat up by the police, but all of them emphasize being polite to cops and using your common sense. Even if the officers aren’t offended, they will definitely not forget Chad for his stunt. Being memorable during an arrest is never a good thing on a DWI case.

The officers might have an easier time getting a blood warrant on these facts, and his BAC would be through the roof after knocking back half a bottle of Fireball. Even if they don’t get Chad’s BAC, the prosecutors could still argue that Chad was not in control of his mental or physical faculties since he did something so ridiculous under the circumstances.

More importantly, Chad’s statements can be used against him, and a prosecutor may argue that Chad admitted consuming multiple margaritas, which is damaging evidence at trial. Additionally, if Chad’s case does go to trial, a jury may be offended by his behavior, especially because they might view it as a waste of their time since no sober person (with good sense) would do something like that.

Lastly, we all know Chad can’t handle his liquor when he drinks Fireball, so all of his exponentially inebriated behaviors afterwards will be filmed, which results in more damaging evidence. In sum, Chad’s Fireball guzzling stunt would create an entertaining arrest video but probably would not help his case. If you must chug cinnamon-flavored whiskey, do it in the safety of your home where your friends can film you (instead of the police).

Nic Butts making a bottle of Fireball disappear

What To Do After You’ve Been Pulled Over Instead of Chugging Liquor

Regardless of why you’ve been stopped, pull over quickly and safely, and turn off the car. Put the keys on your dashboard, turn on your interior lights, and put your hands on the steering wheel while you wait for the officer to approach. Hidden hands alarm police officers during traffic stops. Wait for the officer to ask for your license and insurance before moving your hands from the steering wheel. If asked, “Do you know why I pulled you over?” you shouldn’t offer guesses on why the officer pulled you over.

Remember: you are being filmed and recorded in almost all interactions with police. Don’t obstruct, resist, argue, beg, or verbally abuse cops, even if you think they deserve it. A jury may see the video, and it’s much harder for them to get on the bandwagon of a jerk. Let your attorney fight for you in court. Remember: the right to remain silent is a legal right. You have to tell the officer your name, DOB, and address, but if asked any questions about drinking, you should ask if you are free to leave. If the officer says no, you should ask for an attorney before answering any more questions and remain silent after. Telling a cop what bar you came from and how many drinks you had are detrimental pieces of evidence at trial.

Officers might ask you to perform several field sobriety tests, such as the Horizontal Gaze Nystagmus test (eyes-following-the-pen test), the Walk-and-Turn test, and the One-Leg Stand test. If you’ve been drinking to intoxication and get pulled over, respectfully refuse to perform all field sobriety tests. Also, don’t give officers a breath test or consent to any blood tests. Politely request to speak with an attorney before answering any questions or performing any tests. Refusing sobriety tests will probably result in your arrest and your license getting suspended; refusals can also can be used as evidence against you. These are some of the risks you must recognize when deciding on refusal. Even so, these tests are designed to make intoxicated people fail, so attempting them while intoxicated probably won’t be beneficial to your case. Lastly, do not consent to any search—even if you have nothing to hide.

If you’ve been arrested for DWI or other intoxication crimes, you need an attorney who is ready and willing to fight for you. Call Fort Worth Attorney Bryan E. Wilson at 817-454-5965 and get the Texas Law Hawk on your side today.

New body worn camera evidence is coming. Learn how the Texas hearsay rules and Confrontation Clause apply so you can be ready for trial

Cops Are Now Using Body Worn Cameras. Will You Be Ready at Trial?

Rising Use of Body Worn Video Camera Technology by Police

Video and sound recording by the cops is not a new concept. In fact, law enforcement officers have recognized the value of video evidence for more than half a century with dash-cams in police cruisers. Another example is the television show “Cops,” which films police officers doing everything from scaring first-timers straight to hurdling fences after fleeing felons. I’m a big fan of Cops, and in every episode, a common moment is when suspects notice that a film crew is documenting everything. It’s hard to miss the cameraman lugging around a heavy shoulder camera throughout the arrest. Some suspects are mad, some appear confused, but they always notice that they are being filmed.

However, new technology has inspired a trend among Texas law enforcement agencies that allows officers to capture similar audio and video evidence without the suspect realizing he or she is being recorded. Recently, officers in Texas and across the United States have been using small body worn video cameras that can record both sound and video contemporaneously during the officers’ law enforcement duties.  Some of the cameras sit on an officer’s ear like a Bluetooth headset; others attach to the officer’s chest or shoulder and resemble a walkie-talkie.

The POV glasses camera and the radio camera are two options for officers wearing body worn cameras

The POV glasses camera and the radio camera are two options for officers wearing body worn cameras

Regardless of where they sit on the officer’s body, these cameras are far less noticeable than a cameraman and his lighting crew, yet they create similar contemporaneous audio and video evidence.  And unlike a potential witness’s memory, the clarity of digital video evidence does not fade with time.

Even though this technology will capture seemingly incontrovertible video images with contemporaneous audio, the evidence produced from the cameras raises many jurisprudential concerns—especially since most police agencies refuse to regulate or even acknowledge the common use of body worn cameras.

This post is the first in a four-part series I will write on body-worn camera technology used by police. Each post has been shortened dramatically to give Texas practitioners a summary of the law applied to body worn camera technology. Please feel free to email me at TexasLawHawk@gmail.com for the expanded version or with any questions about my research.

This first post briefly examines the Confrontation Clause applied to the body worn camera evidence, taking into account the recent changes in both Texas and the Supreme Court evidentiary jurisprudence. This article will assume that the video evidence has been preserved for use in court and discuss the admissibility of the evidence at trial.

The other three articles will include discussion of the following: hearsay rules applied to body-worn camera evidence; Brady and other requirements on preservation of body-worn camera evidence; and practical considerations on body-worn camera evidence, with the risk of subjectivity in sensory jurisprudence.

Short Overview of Recent Confrontation Clause Cases Applicable to Body Worn Cameras

The Sixth Amendment of the United States Constitution mandates that “[i]n all prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” To put it in plain English, this “Confrontation Clause” imposes a general requirement that witnesses testifying against someone must appear in court to offer their testimony under the scrutiny of cross examination. A brief history of the Confrontation Clause cases will help but won’t substitute for reading Crawford, Davis, and Bryant in their entirety.

  • The origins of the Confrontation Clause can be traced back to a treason case against Sir Walter Raleigh. He was accused of treason and convicted solely based on handwritten letters read aloud at trial—without any of the accusers taking the stand despite his demands for his accuser’s presence. Since then, courts recognize Sir Walter Raleigh’s death sentence was manifestly unjust.
  • Ohio v. Roberts, 448 U.S. 56, 64-66 (1980) was one of the first modern Confrontation Clause cases, but applied a different test than current case law. Roberts focused on reliability of the statement and admitted unavailable declarants’ statements as long as the statements “bore adequate indicia of reliability”—like statements admitted under hearsay exceptions.
  • Crawford v. Washington, 541 U.S. 36, 42 (2004) overruled the Roberts reliability test. Instead, Crawford drew a line between testimonial and nontestimonial statements. Without defining “testimonial,” the court noted that the Confrontation Clause only applies to testimonial statements. Since Crawford, the Confrontation Clause has required the declarant to be subject to cross examination before any of their out-of-court testimonial statements are admitted at trial unless an exception applies.
  • In Davis v. Washington, 547 U.S. 813, 818-21 (2006), the Court distinguished testimonial and non-testimonial statements in consolidated domestic violence cases. Davis also added an “ongoing emergency” doctrine, which became more significant after Michigan v. Bryant (discussed below).
    • Non-testimonial statements are those made when “circumstances objectively indicat[e] that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” The example was the victim’s statements in the 911 recording during the altercation. The Court found that the victim’s statements on the 911 recording were made to assist in the ongoing emergency (the altercation). Therefore, the Confrontation Clause does not bar them.
    • Testimonial statements occur “when the circumstances objectively indicate . . . no such ongoing emergency, and . . . the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” The example here comes from a different domestic violence case; there, the victim made statements to in response to police questioning her on the front porch away from her assailant after the altercation had been resolved.
    • In Michigan v. Bryant, 131 S. Ct. 1143, 1156 (2011), the Court found that statements made with a primary purpose of resolving an ongoing emergency are non-testimonial and therefore unaffected by the Confrontation Clause.
    • In this case, cops arrived on the scene to find a victim with a gunshot wound to his stomach. His statements were “Rick shot me” and other statements incriminating the defendant.
    • Bryant muddled any Confrontation Clause clarity that followed the consolidated, distinguishable cases from Davis. Also, Bryant threw in a hodgepodge of factors and dramatically widened the “ongoing emergency” exception, which now allows far more statements following Bryant.

Modern Confrontation Clause Applied to Body Worn Camera Evidence

Bryant offers prosecutors a significant advantage over defense attorneys when witnesses—especially victims—fail to appear.  Finding the interrogation’s primary purpose is highly context-dependent, so prosecutors should learn each of the factors listed in Bryant to compare any similarities to their facts.  Assuming compliance with state evidentiary requirements, almost all of the video evidence captured by the officer’s cameras will be admissible.  Before Bryant, body worn cameras would probably bring less evidence into trial, but the expansion of the “ongoing emergency” doctrine in Bryant has narrowed the protections of the Confrontation Clause. Defense attorneys should note that far more 911 calls are likely to be ruled admissible after Bryant.

Defense attorneys should note that crimes of domestic violence are often completed by the time officers arrive; if the conflict has been resolved, then defense attorneys should argue that there is no ongoing emergency, and any damaging statements are inadmissible under the Confrontation Clause. Post-arrest reconciliation between the assailant and victim can cause problems for a prosecutor in the face of the Confrontation Clause, especially when a DA’s office has a no-drop policy. Prosecutors should examine the array of factors under Bryant to look for similarities to their case.

Applying Davis before Bryant, Texas courts would hesitate to admit statements made by an unavailable victim-witness in a domestic violence case unless the officers (and their body worn cameras) arrived before the brouhaha had settled. See, e.g., Vinson v. State, 252 S.W.3d 336, 337-40 (Tex. Crim. App. 2008) (applying Davis to find no Confrontation Clause violation in admitting the 911 recording of a domestic violence before the responding officer arrived, but finding a violation in admitting the officer’s recitation of her statements after he arrived). In Davis, the recently smashed appliances, the frightened wife, and uncooperative suspect were not enough to render Amy’s out-of-court statements admissible against her husband.  After Bryant, however, the ongoing emergency “factor” acts more like an ongoing emergency “flood gate” for admitting statements made to law enforcement, as long as prosecutors effectively utilize the grab bag of factors listed in Bryant.

A recent DWI case in Texas illustrates the difficulties that defense attorneys should prepare for. In Sutton v. State, 05-10-00827-CR, 2011 WL 3528259, (Tex. App.—Dallas, Aug. 12, 2011, no pet.) (mem. Op., not designated for publication), Christopher Downs, off-duty police officer, called 911 to report a drunk driver and describe “the motions of the [Marshall Sutton’s] vehicle and how it was shifting across the lanes of traffic.”  Downs stayed on the line as he followed Sutton to his house.  After Sutton parked in his driveway, Downs approached Sutton and asked him to sit on the curb.  Sutton complied and talked with Downs—as the recording continued—until the arresting officer arrived.   At trial, the judge admitted the entire 911 tape over objection.

Texas DWI Law - Field Sobriety Test

 

Finding the recorded statements nontestimonial, the appellate court affirmed Sutton’s DWI conviction because “Downs was describing an ongoing emergency regarding [Sutton’s] condition and a potential criminal offense in progress.” (emphasis supplied). The facts of Sutton should disturb defense attorneys familiar with the contemporary Confrontation Clause. The opinion was brief, but classifying these circumstances as an ongoing emergency was almost certainly incorrect—especially when the obedient Sutton sat on a curb in front of his parked car long after the “ongoing emergency” (if you want to call it that) was complete. The onset of body worn camera technology will generate more ongoing emergency claims by prosecutors, but defense attorneys should still make specific objections to redact any absent witness’s statements on the audio recording that describe “past events potentially relevant to later criminal prosecution.”  Even if the judge admits the entire recording, a specific object on the record may lead to a higher court restricting the wide latitude of the ongoing emergency factor.

Next post in this series will discuss hearsay rules applied to body-worn camera evidence. If you have any questions or want to discuss my research in detail, feel free to email me at TexasLawHawk@gmail.com or reach me at 817-454-5965.

And, as always, if you need a lawyer, contact Attorney Bryan E. Wilson at (817) 454-5965, and get the Texas Law Hawk on your side today.

Is Drinking an Open Container of Alcohol in Public Legal in Texas?

Drinking in Public: Legal in Texas?

Yep. Just like Boomhauer pictured on the left, I also enjoy drinking a frosty cold beer outside with my friends while enjoying the Texas heat. But are Boomhauer and the rest of the King of the Hill crew above breaking the law? I get a lot of questions about public consumption of alcohol, so I wanted to write something to help everyone out.* Let’s talk about drinking beer outside, y’all.

Consuming Alcoholic Beverages in Public.

Many people believe it’s illegal to walk down the street drinking a beer in Texas. Contrary to popular belief, there is no general statewide prohibition on public consumption of alcohol in the Texas Penal Code. In other words, Texas law allows a person to drink a beer while walking down the street (or while standing in an alleyway) unless an exception applies.

The TABC notes two exceptions on its website, even though there may be more depending on the situation. For example, the law prohibits public consumption of alcohol in public places in state parks. Also, you can’t drink booze in any specific area that a city has made it illegal to drink alcohol. This may include certain areas during special events, such as concert grounds or festivals. The TABC website on public consumption of alcohol can be a helpful resource when you have questions about drinking laws, such as which cities have banned public drinking in certain areas.

So Which Cities Have Bans on Public Consumption of Alcohol?

To ban public drinking, a city must request approval from the TABC under §109.35 of the Texas Alcoholic Beverage Code. Even if the TABC approves this request, it is not a complete ban across the city. Instead, cities can only ban public consumption of alcohol in the “central business district” area of the city. This means that cities can only ban in locations where 90% of the buildings are commercial, so a city can’t ban public drinking in other areas like a residential neighborhood (e.g., the King of the Hill picture above, which means Boomhauer is legally entitled to finish that beer!).

The easiest way to check if there is a ban in your city is to look it up on the TABC website above. According to the website as of April 8th, 2014, here are the cities with orders against public consumption of alcohol:

  • Amarillo
  • Claude
  • College Station
  • Corpus Christi
  • Dallas
  • El Paso
  • Farmersville
  • Giddings
  • Groveton
  • Houston
  • Hubbard
  • Jefferson
  • McAllen
  • Rosenberg
  • San Angelo
  • San Antonio
  • San Marcos
  • Shamrock
  • Sinton
  • South Padre Island
  • Taylor
  • Timpson
  • Vernon

Let’s use Dallas as an example. Below is the map that shows the portion of Dallas where public drinking has been banned, with the banned area highlighted in yellow:

Area where public drinking is illegal in Dallas

The highlighted yellow shows the area where public drinking is illegal in Dallas

Essentially, this means that there is no general ban on public drinking in Dallas except for the portion in the map above that is highlighted in yellow. Thankfully, Fort Worth is not on the list, so there is no general ban in Fort Worth on public consumption of alcohol.

But before you hit the streets with your beer funnel and a sixer, there are some important exceptions and qualifications to the general rule. The exceptions from the TABC website I discussed above are not a complete list. For example, the TABC website doesn’t mention that it is illegal to consume alcohol in most convenience store parking lots. They also don’t mention that driving around with an open container is illegal or that you can’t be intoxicated in public (even inside of a bar). These are just a few examples of why you should consult an attorney before relying on any discussion of the law on this or any other website.

One Final Point: Use Your Common Sense When Drinking.

One last point of great importance: just because something is technically legal does not necessarily mean it’s a good idea. Cops don’t know every criminal law or the intricacies of how they are applied; even criminal lawyers look up statutes and case law on a daily basis. You may be legally entitled to drink a beer in public, but most folks don’t do it, so it might draw attention to yourself and raise a red flag to a cop to investigate you for a public intoxication charge. If you’re over 21, enjoy your beer just like Boomhauer, but understand the risks of public drinking—and educate yourself on your rights when dealing with police: www.TexasLawHawk.com/your-rights/.

For you visual learners out there, here is a chart that summarizes this post:

Final Public Consumption of Alcohol Chart

Know your rights. If you’ve been arrested for drinking, that doesn’t necessarily mean you are guilty. You are presumed innocent until proven guilty. After an arrest, you need a criminal defense attorney who knows the law and isn’t afraid to fight back.

Call Attorney Bryan E. Wilson at (817) 454-5965, and get the Texas Law Hawk on your side today.

 

*Since we are talking about drinking, here’s a quick disclaimer: nothing in this post (or on this website) is legal advice. I write my impression of the law, but that doesn’t mean that you should apply these legal principles to your situation. Your facts might be (and probably are) different than the examples above, and would command different advice. It is against the law to consume alcohol if you are under 21 years of age. Talk with an attorney before you rely on anything in this post or other portions of this website.

 

Get ready for the 2014 Great Warrant Roundup in Texas!

YeeHaww! Here Comes the 2014 Great Warrant Roundup!

Many people with old tickets or unresolved misdemeanor charges have received notice of the upcoming the “2014 Great Warrant Roundup,” and huge billboards give the following warning: “GREAT WARRANT ROUNDUP: PAY YOUR FINE OR GO TO JAIL.” With letters large enough to give you a headache, the billboard leaves its reader with only two options: (1) pay your fine; or (2) be arrested and taken to jail. This blanket statement is terrible advice to give everyone and an inaccurate statement of the law depending on the type of warrant. Therefore, I wanted to help out people who have some old warrants, tickets, or unresolved misdemeanors.

Here comes the 2014 Great Warrant Roundup in Texas!

Here comes the 2014 Great Warrant Roundup in Texas!

All across Texas, the Roundup will begin on March 1st and continue through March 9th. The purpose of the Roundup is to bring in as much revenue as possible for unresolved Class C misdemeanor warrants (for example, tickets related to speeding, no seatbelt, etc.). Practically speaking, this means that police officers will be (1) targeting people with old misdemeanor warrants that may otherwise be ignored; and (2) making substantially more arrests than usual. Officers across Texas have warned that they will arrest people at their homes and jobs if they don’t pay the fines, but paying the fine is the last thing you want to do with most warrants.

There are many types of warrants, but the Roundup focuses on two: capias warrants and alias warrants. Capias warrants are issued when a person does not comply with court orders. A common example is when someone enters into a plea agreement but then fails to follow the payment plan. The billboard is correct that these fines should be paid since there is already a conviction.

However (and this is a big however), alias warrants should not be paid in full. Alias warrants are issued when a person fails to respond to a citation or show up for court. If there has not yet been a plea of guilty or no contest entered, an attorney can help you post bond and lift the warrant, which gives you another chance to plead not guilty. On the other hand, paying the fine on an alias warrant results in a conviction for that offense.

A conviction for a Class C misdemeanor may seem insignificant because there is only a maximum of a $500 fine and no jail time, but there are many other consequences that result from paying fines instead of contesting the charge. Some of these consequences include:

  • Permanent conviction on your driving record
  • Higher insurance rates
  • Points against your DPS driving record
  • Suspension of your driver’s license
  • Yearly surcharge payments to keep license valid
  • Future arrest for driving while license suspended or invalid

Therefore, paying the fine is rarely the best option to resolve misdemeanor warrants, so don’t take the billboard’s advice without first consulting an attorney. The 2014 Great Warrant Roundup is coming soon. Get an attorney who can give you another chance and fight back.

If you have warrants, call Attorney Bryan E. Wilson at (817) 454-5965 and get the Texas Law Hawk on your side today.

Bieber-Arrest

Things Not to Say to Police: 6 Lessons from Justin Bieber’s Arrest

Love him or hate him, we all know Justin Bieber. This infamous bad-boy musician may have finally established his street cred by landing himself in a pair of handcuffs last Thursday for DUI and resisting arrest. The scrappy Canadian was particularly antagonistic to the arresting officers, so I thought that a brief analysis of his police report would illustrate what NOT to do when interacting with police. Let’s pretend that he pulled this stunt in Texas and learn a few lessons on how to act if you get pulled over. Below, I’ve selected some choice excerpts from the arresting officer’s police report and then discussed how the Biebs could have handled himself differently.

Excerpt #1

“[THE POLICE OFFICER] ASKED [JUSTIN] TO PLACE THE VEHICLE IN PARK. AT THIS TIME, [JUSTIN] BEGAN TO STATE: “WHY DID YOU STOP ME?” [JUSTIN] STATED: “WHY THE F*** ARE YOU DOING THIS”?”

Here’s his first mistake: he initiated confrontation with the officer. When you get pulled over, you need to remember that cops have unlimited discretion to do as they please. If you give an attitude to them, expect to get an attitude in return. No matter how you feel about cops, always treat them with respect.

If officers ask you to get out of your car, ask if you’re free to leave. If they say ‘no’, then ask to speak to an attorney before you say anything else.

Excerpt #2

“[THE POLICE OFFICER] ASKED [JUSTIN] TO NOT GO INTO HIS POCKETS FOR [HIS] SAFETY. . . . [THE POLICE OFFICER] ASKED [JUSTIN] TO PLACE HIS HANDS ON HIS VEHICLE IN ORDER TO FACILITATE A CURSORY PATDOWN FOR WEAPONS. [JUSTIN] STATED: “WHAT THE F*** DID I DO, WHY DID YOU STOP ME?”

Many officers will agree that traffic stops present the biggest threat to their safety because they never know if the driver or passengers are dangerous. Quick movements, reaching under your seat, or putting your hands into your pockets will all increase the sense of danger in the officer’s mind.

A few things will help. First, turn off the car and put the keys on top of the dash. Keep your hands on the wheel at 10 and 2, and tell the officer where your hands are going before reaching for anything. For example, say, “Yes officer, my insurance card is in my glove box, so I’m going to reach for it right now,” before you begin to move your hands towards the glove box. If it’s night, turn on the inside light. The cop will appreciate all of this.

And don’t ever say “what the f*** did I do?” (See mistake #1 above).

Excerpt #3

“[IN RESPONSE TO A REQUEST FOR A CUSORY PATDOWN, JUSTIN SAID HE] AINT GOT NO F***ING WEAPONS, WHY DO YOU HAVE TO SEARCH ME, WHAT THE F*** IS THIS ABOUT?”

The Biebz had the right idea here: you should never consent to a search. If the officer reasonably senses danger (like a suspect putting hands in his pockets), the officer may be able to legally pat you down. All pat downs and searches by law enforcement are subject to the 4th Amendment, which excludes evidence if the search was unreasonable. Still, a better way to respond without the f-word is “I do not consent to any searches, but I will not resist.”

Excerpt #4

[JUSTIN] BEGAN TO RESIST [THE POLICE OFFICER] BY PULLING HIS RIGHT ARM AWAY AS HE STATED: “WHAT THE F*** ARE YOU DOING.”

Don’t. Ever. Resist. You are being recorded, and if that video ever ends up in front of a jury, you’ll look like an ass (even if the arrest was illegal). Let the video show you being respectful instead of abrasive, then let your attorney fight back in the courtroom.

Excerpt #5

WHILE EN ROUTE TO THE STATION, [JUSTIN] INQUIRED AS TO WHY HE’D BEEN ARRESTED.

All statements can be used against you in a court of law. Based on Justin’s statement here, a prosecutor could mention in his or her closing argument that the defendant had already forgotten why he was arrested. Whether or not that’s true is irrelevant; it’s still a point against him.

After you’ve been arrested, invoke your right to silence and to have an attorney. Practically speaking, this means, “I’d like to speak with my attorney before answering any questions.”

Excerpt #6

[JUSTIN] DID NOT PERFORM [FIELD SOBRIETY TESTS’] TO STANDARDS. [JUSTIN] LATER AGREED TO A BREATH TEST AS WELL AS A DRUG EVALUATION.

Although the report is unclear here, it seems that the Biebster attempted (and failed) a breathalyzer and field sobriety tests. If you want to see why this is a bad idea, try standing on one foot for thirty seconds. Tough, isn’t it? Now imagine doing that with your heart racing while flashing lights disorient your vision as you’re surrounded by a pack of attentive police officers hungry for an arrest.

If you’ve been drinking, don’t perform these sobriety tests. Also, don’t consent to any breath or blood tests. Politely request an attorney instead. A refusal may result in your license getting suspended and can be used as evidence against you. Even so, that’s better than a slam-dunk case for a prosecutor.

If you find yourself in a similar situation as Justin Bieber, contact Bryan E. Wilson, the Texas Law Hawk and have him fight for your rights.