No. In fact, in most cases a knowledgeable lawyer can make a video work for you, not against you. The video is the only piece of “evidence” the jury gets to view. When you look good on video jurors are often suspicious of tests or testimony which indicates you were intoxicated.
Is it possible to defend a drunk driving charge even if I took the breath test?
Yes. We have had juries return not guilty verdicts in breath test cases. In fact, some of those cases involve results of two to three times the Texas legal limit of .08. Defending a breath test may involve hiring expert consultants and witnesses to explain the process and deficiencies to the jury. Breath tests cost more to defend but are just as winnable as refusal cases.
A lawyer told me once to always refuse the breath test, but the police have charged me anyway. Can the Police do this?
Yes. In Texas, a person may be charged with DWI if an officer believes that person drives without the normal use of his mental or physical faculties due to alcohol or a drug or a combination of the two. In other words, if the officer believes your mental or physical faculties were at all less than normal you can be charged and tried for DWI. In fact the refusal can be used against you.
A good attorney can demonstrate that refusing tests is your RIGHT and you should not be punished for asserting this right. A skilled trial attorney will explain to the jury that submitting to an invasive or unreliable test may actually demonstrate rational thought and be evidence that your mental faculties were normal.
Situations may vary, but in most cases, the simplest, most effective defense is for the suspect to POLITELY refuse to participate in ANY testing or questioning. Just say no!
The only thing you must do in a DWI investigation situation is to provide the officer with your proper identification. All sobriety testing is voluntary on the part of the suspect.
The “Just Say No” defense is grounded in the simple premise that it is almost impossible to establish that someone is intoxicated if the individual merely sits (or stands) there saying nothing and doing nothing. It’s hard to screw up “doing nothing.”
This is NOT to suggest that you should drive drunk, or be irresponsible in operating a motor vehicle. No amount of legal advice can keep a drunk driver from being arrested, or killing themselves or someone else. Use your head, and drive responsibly! Generally speaking, if you are stopped for DWI in Texas, you are better off to politely refuse to do ANY testing.
The first test the police generally request is horizontal gaze nystagmus – the “follow the pen with your eyes” test. As soon as the police request you to perform this test, simply and politely refuse. Then refuse all other testing as well.
Many people seem to have trouble saying no to a police officer. The easiest way is to simply turn the tables on the officer: “Officer, which tests am I required to take? Oh? I’m not required to take ANY tests? Well, then, I know that I’m not intoxicated, but since I’ve never done these tests before, I’m not going to take them now.”
Some lawyers have stated that refusing all of the tests will result in you being arrested every time. This is clearly not the case. I have had several clients utilize the “politely refuse all tests” approach, and the officers let them drive off, or let them call a friend to drive them home. If you refuse to take any of the tests, even if the officer DOES arrest you, you stand an excellent chance of beating the case. No tests basically equates with no evidence, and no evidence almost always leads to a not guilty verdict.
If you TAKE the tests, you basically are giving the police all of the evidence they need to convict you, and you are handing it to them on a silver platter!
I refused to take the breath test. Can the fact of my refusal be admitted in court?
YES. Just like you should not take any tests, you shouldn’t answer any QUESTIONS either. Remember, anything you say can and WILL be used against you.
While there are driver’s license suspension consequences for failing or refusing to take a breath or blood test. Just IGNORE those driver’s license consequences. There is NO driver’s license consequence which is worse than a DWI conviction!
License suspension problems are temporary at worst, and in most cases you can easily obtain an occupational license to replace your regular license. License suspensions are temporary. DWI conviction are forever!
What defenses can be raised in drug cases?
The most common defense raised in drug cases is to challenge the search and seizure that resulted in the police finding the drugs. If the police violated the defendant’s Fourth Amendment search and seizure rights, the court will suppress, or throw out, the drugs as evidence. The prosecution will then have far less evidence to prove the case beyond a reasonable doubt and the case could even be dismissed.
In marijuana cases, I may attempt to “nullify” the jury which means to ask the jury to disregard the law and to acquit you. If the jury develops sympathy for you and antipathy for the law, we may be able to get the jury to disregard the law and decide the case based on fairness and equity.
Sexting and Your Child
What is sexting?
Sexting is the act of sending sexually explicit messages, photographs, or videos primarily between mobile phones (Wikipedia) — Texas law also includes any “electronic means,” which includes computers and other digital devices. The term was first popularized in early 21st century, and combines the words “sex” with “texting.”
Examples of Sexting
You are at a party with a group of friends. They think it would liven up the party to take pictures of each other, without clothes and send them to each other.
During exam week you are too busy to see your boyfriend/girlfriend in person, yet you want them to know that you are thinking of them. You decide to email them several photos you took of yourself with your clothes off.
After you break up with them, your ex-boyfriend/girlfriend forwards a photo you without clothes on—a photo you faxed them, back when you were still dating— to a close friend of theirs who has promised not to share it with anyone else.
Since Texas Senate Bill 407 passed in 2011, the legal consequences regarding sexting have been expanded; therefore, it is important for everyone – especially minors – to become aware of the penalties that can come from being convicted or adjudicated of sexting.
Module Objectives
- Recognize the difference between “possession” and “promotion” of electronic material
- Identify at least two possible legal consequences for sexting
- Recognize the difference in the conditions for Class A, B, and C misdemeanors for sexting
- Recognize the difference between Class A, B, and C misdemeanor penalties
- Recognize the conditions and penalties for the felony offenses of possession or promotion of child pornography
- Recognize the difference between being charged for sexting as a child or as a minor who is not a child
- Recognize the conditions of juvenile probation
Module Topics
This module will review the following topics:
- What is Texas Senate Bill 407?
- What is the difference between “promotion” and “possession”?
- What are the misdemeanor conditions and penalties for sexting?
- What are the felony conditions and penalties for sexting?
- What is the educational program for sexting prevention?
- What is the difference between being charged for sexting as a child or a minor?
What is Texas Senate Bill 407?
Before Texas Senate Bill 407 (SB 407) was passed, minors who engaged in sexting could only be charged with promotion or possession of child pornography, which, if convicted, carries a felony offense and lifelong registry as a sex offender for up to 10 years after supervision expires– both extremely serious penalties. SB 407 Texas Penal Code Section 43.261 now provides courts less extreme charges and penalties that still discourage the practice of sexting without the life-altering consequences of a possible felony conviction and sex offender status.
In general, you are illegally engaging in sexting if you – knowingly or on purpose – send, show or keep a picture or video of a minor – including yourself – engaging in “sexual conduct”.
What is the difference between “promotion” and “possession” of electronic material?
Technically, the law uses the terms “promotion” and “possession” when referring to sending and keeping illegal “visual material”. While “possession” simply means keeping a picture or video, the term “promotion”, according to the law, also means manufacture, sell, give, lend, transmit, publish, distribute, present, or exhibit.
- Possession: having actual care, custody, control or management of material that depicts another minor engaging in sexual conduct that has not been destroyed in a reasonable amount of time
- Promotion: to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, to transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or agree to do any of the above, sexually-explicit or sexually- suggestive images or video via mobile device or computer
What are the misdemeanor conditions and penalties for sexting?
Class C misdemeanor: A fine of up to $500.00.
You can be charged with a Class C Misdemeanor for sexting promotion or possession if it is a first-time offense, and you are a minor who is not a child
Class B misdemeanor: A fine up to $2,000.00, 180 days in jail, or both.
You can be charged with a Class B Misdemeanor for sexting if you are a minor and you:
- Promoted visual material with intent to harass, annoy, alarm, abuse, torment, embarrass, or offend someone
- Have previously been convicted for sexting
Class A misdemeanor: A fine up to $4,000.00, one year in jail, or both.
You can be charged with a Class A Misdemeanor for sexting if you are a minor and you:
- Have previously been convicted one or more times of promoting the visual material with intent to harass, annoy, alarm, abuse, torment, embarrass, or offend someone
- Have previously been convicted for general sexting promotion or possession two or more times
What are the felony conditions and penalties for for promotion or possession of child pornography?
Third degree felony: A fine not to exceed $10,000.00 and at least two years in prison, but no more than 10 years
You can be charged with a third degree felony for possession of child pornography if you are at least 18 years old.
Second degree felony: A fine not to exceed $10,000 and at least 2 years in prison, but no more than 20 years.
You can be charged with a second degree felony for promotion of child pornography as either a minor or as an adult.
Consider this: It’s completely possible that as an 18 year old high school senior, you may be charged and convicted of possession and/or promotion of child pornography if the person you’re dating is under 18 years old and sends you such images and you have them on your phone or computer. The offense of possession is complete upon receipt of the images; promotion involves showing or sending them on to other people and is a second degree felony.
What is the Sexting Prevention Education Program?
In place of, or in addition to a fine or jail time, a minor may be required by a judge or probation department to take and pass an educational program regarding sexting. This program, created by the Texas School Safety Center, is not only specifically named as one that courts can require, but Texas law also requires that all school districts make information about this program available every year to both parents and students in a grade level that the district considers appropriate.
What is the difference between being charged for sexting as a child or as a minor who is not a child?
If you are under the age of 18 and are charged with a Class A, B, or C misdemeanor, the consequences can range from probation to fines and/or prison time. Juvenile probation and adult probation both give you the opportunity to reflect and learn from your mistakes, but should you fail to uphold your assigned responsibilities as detailed in your terms of probation, your sanctions can become more severe. So, if a child in Texas is charged with sexting, s/he will be dealt with in juvenile court. If the charge of sexting is found to be true, the child may be found to have engaged in Conduct Indicating a Need for Supervision (CINS), and be subject to the appropriate progressive sanction for the level of the offense.
1. At Sanction Level I, a juvenile court or probation department may:
- Require counseling for the child regarding the child’s conduct
- Inform the child of the progressive sanctions that may beimposed on the child if the child continues to engage in delinquent conduct or conduct indicating a need forsupervision
- Inform the child’s parents or guardians of their responsibility to impose reasonable restrictions on the child to prevent the
conduct from recurring - Provide information or other assistance to the child or the child’s parents or guardians in securing needed social services
- Require the child or the child’s parents or guardians to participate in Early Youth Intervention Services, if available to the child or the child’s parents or guardians
- Refer the child to a community-based citizen intervention program approved by the juvenile court
- Release the child to the child’s parents or guardians
- Require the child to attend and successfully complete a sexting prevention educational program, or another equivalent educational program.
2. In addition to the Sanction Level I conditions, a juvenile court or probation department may:
- Place a child on prosecution for not less than three months or more than six months
- Require the child to make restitution to the victim of the child’s conduct or to perform community service
- Require the child’s parents or guardians to identify restrictions the parents or guardians will impose on the child’s activities and requirements they will set for the child’s behavior
- Require the attendance and successful completion of a sexting prevention educational program
If a 17 year old minor in Texas is charged with sexting, the case will likely be handled by a justice, municipal, or county court. If found guilty, it is possible for a 17 year old minor to receive probation as part of deferred adjudication.
Should a child or minor successfully fulfill his/her terms of probation, it is possible to apply for the conviction to be removed from his/her record. Therefore, the justice system – especially for juveniles – gives people the opportunity to make up and learn from their mistakes, start over with a clean slate, and participate as safe and responsible citizens.
DWI No Refusals
In Texas, holiday weekends have been renamed “No Refusal Weekends”. This program has been designed in a cooperative effort between judges, prosecutors, and the police, usually observed and sometimes funded by MADD. All in an effort to convict you of a DWI (Texas) whether you deserve it or not. Local police departments and sheriff departments may announce a no refusal weekend, but you can count on all of the following as being designated a no refusal weekend:
Memorial Day Weekend,
Fourth of July Weekend,
Labor Day Weekend,
Halloween and Thanksgiving weekend through Christmas and New Years eve.
If you have only one or two drinks at a holiday party in Houston, Texas, for example, and you are stopped for an innocent traffic violation, then it is likely that you will be arrested and your blood will be forcibly taken from you.
If you do not fall within one of the statutorily created “NO REFUSAL” exceptions to reasonable searches and seizures guaranteed to you by the 4th Amendment, and which are set forth in Texas Transportation Code §724.012, then the police will seek a search warrant to take your blood.
When the police get the search warrant for your blood, and if you then do not cooperate in the taking of your blood, your blood will be forcibly taken from you by the police.
So what can you do after being arrested during a NO Refusal Weekend?
- Hire an experience criminal defense attorney IMMEDIATELY. Some of your rights are time sensitive. For example the request for a hearing to protect your driver’s license must be made within 15 days of your arrest.
- Be prepared to hire a toxicologist or blood expert to combat the blood test results and place questions in the juror’s mind about the reliability of the results.
- You will be going to trial. Unless you can accept the conditions and limitations probation will place upon you know that this case will not likely be dismissed or reduced and you will need to begin to prepare for trial with your attorney. This included interviewing all witnesses to your drinking that night and committing these witnesses to testify on your behalf in a jury trial.
Refusals and blood tests can be defeated in trial but obviously it is easier to fight a DWI with no breath or blood tests. In addition many jurors trust blood results more than the breath machines used throughout the state. Get a driver or friend who doesn’t drink on holiday weekends so that the price of one night of fun won’t haunt you for a lifetime.
Juveniles and Sexting: Reduced Punishment
Most parents seem to think it they have raised a “good kid” who does well in school that child is insulated from criminal prosecution. BEWARE! The new “sexting law” affects any teenager who sends an explicit photo on line on through their cell phone. Fortunately children who 2 years ago would have faced felony charges, prison time and mandatory registration as a sex offender, now could be punished under much more lenient charges. But you must know your rights.
Texas Governor Rick Perry signed a legislative bill which became law on September 1, 2011 decreasing the penalty for teenagers, who are caught ‘sexting’ with each other, to a misdemeanor. Prior to the passage of the new sexting laws, juveniles caught sexting could face felony charges and wind up as a registered sex offender. Under the new law, a sexting offense is a Class C misdemeanor for first-time violators less than 18 years old. Judges are now authorized to sentence minors convicted of sexting – and one of the minor’s parents – to participate in an education program about sexting’s long-term harmful consequences. The new law also allows teens to apply to the court to have the sexting offense expunged from their records. What exactly is sexting? Sexting is the act of sending sexually explicit messages and/or photographs, usually via cell phones or computers.
One in five teens have admitted to sexting, according to a survey conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy. A greater number said they had received sexually explicit photos of other teens, which were meant to be private, highlighting the risk of sexting. Most teens intend for the message and/or photo they send to be private. However, when message and/or photo goes viral – it cannot be retracted.
“Studies show that teenage students are increasingly creating, sending and receiving explicit pictures of themselves on their mobile telephones,” Texas Attorney General Greg Abbott said. “This practice is not just harmful to the young Texans who appear in compromising photographs – it poses significant legal risks. Thanks to Sen. Kirk Watson’s legislation, Texas has a commonsense law that holds wrongdoers accountable – but does not impose life-altering consequences on young offenders.”
Offenders could face arrest, jail time of up to one year, fines up to $4,000.00, court costs, attorneys fees, community service up to 200 hours, mandatory attendance at a sexting educational program, confiscation of cell phone or other electronic device by law enforcement, and a criminal record – not to mention the public humiliation from all of the above.
Search and Seizure
Compare two cases on “what’s a stop”:
“Invs. Concepcion and Dodaro merely parked alongside Mr. Alexander’s car, walked to each side of the car, and asked Messrs. Frails and Alexander routine questions about their presence in the neighborhood. It is undisputed that the time between parking the patrol car and approaching Mr. Alexander’s car was very brief, the suspects had their windows down, the investigators did not draw their weapons, did not ask for identification, and did not give any directions to Mr. Alexander or Mr. Frails during the initial part of the encounter. [¶] Police action such as this is insufficient to establish a Fourth Amendment seizure.” United States v. Alexander, 2013 U.S. Dist. LEXIS 176920 (S.D. Ga. October 18, 2013).*
Defendant was stopped without reasonable suspicion: United States v. Garner, 2013 U.S. Dist. LEXIS 175962 (D. Nev. October 22, 2013)*:
In this case, the government’s written motion argues that Bowman’s attempt to approach and question Garner did not constitute a seizure. The government relies on a line of cases in which the Supreme Court has held that police questioning alone does not constitute a seizure. See, e.g., Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality opinion). It is clear, and the court finds, that this was not a consensual encounter. Bowman and Valle were shining their patrol vehicle spotlight down the alley and focused on Garner when they observed him seated in his car. The spotlight remained on him while the officers immediately pulled their patrol car to the front of Gardner’s vehicle parking at an angle near the front headlight of Garner’s vehicle. The officers activated the patrol vehicle’s emergency lights and immediately got out of the vehicle approaching Garner’s vehicle on both sides. Although both officers testified Garner’s vehicle was not completely blocked in by the patrol vehicle, both acknowledged that Garner would have had to maneuver his own vehicle to get around the patrol car. More importantly, both Bowman and Valle testified that from the point of the initial encounter, Garner was not free to ignore the police presence and go about his business. Rather, both Bowman and Valle acknowledged that Garner was being detained. Bowman testified that Garner was not free to leave and that he was being detained until Bowman made contact with him. Valle also testified that from the point the patrol car pulled up at an angle near the front headlight of Garner’s vehicle, Garner was not free to leave. The court finds that Garner was seized in an investigatory detention.
The law is very clear. While the police can do a quick investigative stop on a vehicle or person and request a name, the police cannot SEARCH you, your car or your purse without probable cause. You do NOT have to agree. When a stop happens, be polite but be aware of YOUR rights. Politely say, “I do not agree or give consent to any search of my person or property and would like to call my attorney.”
If you use this language the police cannot misunderstand or later claim you gave consent. It doesn’t matter that you don’t have a personal attorney. It is the request that gives rise to the right. The police must stop questioning you at this point unless they have probable cause to believe a crime has occurred or see contraband in plain view.
Which gives rise to another issue, don’t leave your “drugs, guns or contraband” in plain view. If you must carry those items in the car (which sets you up for arrest and detention) place them in your trunk and obey all traffic laws!
But mainly know your RIGHTS. SAY, “NO” TO REQUESTS FOR SEARCH!
What is a No Refusal Weekend?
TEXAS DRUNK DRIVING NO-REFUSAL WEEKENDS
Unfortunately, Texas has some of the worst statistics when it comes to DWI fatalities. There are laws in place to prevent intoxicated driving and to punish those involved. But these laws are only somewhat successful in limiting the number of deaths on Texas roads. Due to the popularity of many crime dramas on television, jurors’ perception of what’s required for sentencing is often skewed. This inappropriate application of the burden of proof, combined all too often with a suspect’s refusal to submit to a scientific or chemical sample, has presented a significant problem for law enforcement.
To combat these issues, police departments across the state have begun instituting “no-refusal weekends” — a program that allows law enforcement to collect a blood sample from people pulled over for suspected DWI regardless of whether the individual refuses testing. In Texas, all drivers are considered to have given implied consent to provide a breath or blood sample if an officer is lawfully requesting it during a DWI stop. Despite that fact, roughly half of all suspects still refuse.
During a no-refusal weekend, if you are suspected of DWI and you refuse to provide a breath sample, you will be forcibly made to provide a blood sample by means of a streamlined process set up to ensure accuracy and admissibility of the evidence in court. Without the program, an arresting officer must take a DWI suspect to a separate locale and await approval of a warrant to obtain a blood sample. During a no-refusal weekend, this process is condensed. At a central location, a suspect is processed for arrest, has a warrant drawn up by prosecutors and reviewed and approved by a judge, and goes through the blood collection process with a nurse — all while being videotaped to ensure that evidence is preserved and accurately depicted for a later court date.
Due to the higher number of impaired drivers on the road during holiday weekends, the first no-refusal weekend took place during Memorial Day weekend in 2007. Many impaired drivers went through the program — including 12 who went through the entire “blood warrant” process. Of those 12, 11 were above the statutory blood-alcohol limit in Texas. The evidence collected exonerated the other remaining person.
Certifications
