Were You Arrested in Texas and Need Help? Check Out Our FAQs
A face-to-face meeting with Walter Reaves will help answer all of your questions, but until then, here are a few of the most frequently asked questions we hear.
- Page 3
How important is the DWI video?
Almost every police car in Waco - and everywhere else in Texas - is equipped with recording equipment. It is usually activated when the officer decides to stop someone and is not turned off until they arrive at the jail if an arrest is made. When an officer suspects someone of driving while intoxicated, they perform a series of tests called Field Sobriety Tests. How you perform has a lot to do with the ultimate disposition of your case.
Generally, the video is not something you have a chance to review until after charges are filed. In most jurisdictions, the video is provided as part of discovery. Some places will let you make a copy - McLennan County is one of those places - while others will only let you review them in the District or County attorney's office. Hill County is one of those places.
I've had a lot of clients tell me they did really well on the sobriety tests. In fact, most people think they did great. The video supports some, while for many the video shows the complete opposite. After reviewing the video - or getting a description of it - the first question is usually how important it is going to be.
The fact is that the video is the most important piece of evidence in most cases. The better you perform, the better your chance of getting the case dismissed, or obtaining a not guilty verdict. Police reports in most cases read almost exactly the same. "The suspect had bloodshot eyes, and the odor of alcohol on their breath." When describing the field sobriety tests they set out everything the person did wrong - and never mention what they did right. Many times the descriptions are grossly exaggerated; when you read them you wonder how the person made it through without falling on their face. The flip side is also true - if you look really bad on the video there may not be much you can do but make the best deal you can.
There are many videos where the suspect appears to do everything well. Those are the cases where you can use the video to prove that you weren't intoxicated. It's even better when observations the officer put in the report don't show up in the video.
So what if your video is horrible? There still could be some hope. Before an officer can stop you they must have a reasonable suspicion that you've committed some offense. If they don't have that, everything that results from the stop - which would include the video - would have to be suppressed.
That's why you can't make a decision solely on the video. Instead, your lawyer must look at everything before advising you on how to proceed. Which also means you must have a lawyer who knows what to look for.
Are there time limits for filing criminal charges?
This week in Waco the State is prosecuting a murder case where the murder happened 18 years ago. When some people see a case like this, it's not uncommon to wonder how long the State has to file charges against someone. There are time limits - which are different according to the type of case it is. As you would probably guess, the more serious the charge, the longer the State has to file it.
What governs the time for filing charges is the Statute of Limitations. In Texas, that is found in Chapter 12 of the Texas Code of Criminal Procedure. Art. 12.01 addresses the time limits for felonies. For some offenses, there is no time limit. That includes murder and manslaughter, as well as most sex offenses where the victims are children.
There is a 10 year limit for certain types of theft as well as forgery, injury to the elderly or a disabled person, sexual assault and arson.
Financial offenses such as misapplication of fiduciary property, or property of a financial institution, securing the execution of documents by deception, false statements to obtain property or credit, money laundering, credit card or debit card abuse and use or possession of identifying information are all subject to a seven-year limitation.
Most other offenses are subject to a five year limitation period.
As you can see, there are several different periods, along with a number of rules concerning how you calculate time. No lawyer I know of has that list memorized. However, you should know enough to know when should you check and see if its an issue.
Misdemeanors are little simpler. The limitation period is two years.
Limitation does not come up very often because most cases are prosecuted fairly promptly. However, when it is, it must be investigated and pursued. If you are outside the limitations period - and there are no exceptions - the case must be dismissed. It makes no difference how guilty you may be.
As with any legal issue, you must rely on the advice of a competent criminal defense attorney. Time periods change, and there are exceptions which may apply in any case. You need a lawyer to investigate and review the case and determine whether it is something you might be able to take advantage of.
Do crime labs make mistakes in testing drugs?
Many people assume that testing for drugs is a relatively straightforward process. We envision a machine where you put something in, and it tells you yes or no. The truth is, testing is not as simple as that. A number of processes are involved, which means mistakes will be made. Our Texas criminal defense firm has handled many drug charge cases where mistakes could have cost our client time in jail and much more.
It is probably impossible to determine how often mistakes are made. Even if it's a small percentage of cases, if it's your case the mistake can mean the difference between living with a criminal record or getting the charges dismissed.
When the lab does do everything right, sometimes they determine that what was submitted was not a controlled substance. Every few weeks I see a case where someone pled guilty, only to later find out that whatever they had wasn't a controlled substance at all. Examples of that include Ex Parte Davenport-Fritchse, No. AP-77,013 (Tex. Crim. App. - 4/17/13) and Ex Parte Gainus, WR-79,346-01 (Tex. Crim. App. - 5/8/13) In the first case the defendant was sentenced to 60 days, and in the second case three years.
I still don't understand how that happens. In Waco and McLennan County, the District Attorney will not file a felony case without having a lab report, which would hopefully solve that problem. I would imagine a number of other counties have the same policy. It only makes sense to make sure you are actually prosecuting a crime before moving forward. Otherwise, you end up with cases like those above.
I also don't understand why a defendant would agree to do that. Were they duped, and thought they had actually had something? I realize drug dealers are probably not the most trustworthy people out there but do they sell fake stuff that often? You would think it would be pretty easy to figure out.
The lesson from all of this is to not take anything for granted. If the lab report is back, look behind it and make sure everything was done properly. If it's not, don't go forward until you have it.
Learn more about the criminal justice system in my book, Criminal Injustice - Don't Become Another Victim of the Criminal Justice System. If you find yourself in need of an experienced drug charge defense attorney, contact our office for a consultation.
What is the law of Self-defense in Texas?
In the wake of the George Zimmerman/Trayvon Martin verdict, there's been a lot of discussion about self-defense. Unfortunately, many of the reports in the media have been misleading, if not downright false. So to set the record straight, here's the definition of self-defense according to Texas law. The same law that applies in Waco or McLennan County, or any other city and county in Texas.
Self-defense is referred to as a "justification" - that is defined in Section 9.02 of the Texas Penal Code as something that is a "defense to prosecution". Section 9.31 sets for the general requirements of self-defense. Generally, force is justified "when and to the degree necessary to protect the actor against the other's use or attempted use of unlawful force." The individual must have a "reasonable belief that the use of force is immediately necessary.
So to start, force is justified when an individual has a "reasonable" belief. The use of force must also be immediately necessary. You can't walk away and then come back and assault someone.
There are some limits on the use of force. Those include:
- the person did not provoke the person against whom force was used
- the provocation is not strictly verbal - you can't assault someone just because they called you bad names
Under Section 9.31 the use of force is limited to the force used by the other person. For example, if someone hits you, you can't pull out a knife and stab him.
There are special rules which govern the use of deadly - such as using a weapon. Generally, you cannot use deadly force unless it's immediately necessary to protect against the other person's use or attempted use of deadly force. In other words, you have to reasonably believe someone is trying to use deadly force against you.
You are also authorized to use deadly force if it's necessary to prevent the imminent commission of "aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated robbery." You can also use deadly force against someone who "unlawfully and with force" enters your habitation, vehicle or place of work.
So there's the law of self-defense. The concept is basically pretty simple. You can protect yourself and others, but only to the extent that it's necessary. Your decision must be reasonable, which is usually where the difficulty comes in when establishing the defense. You have to convince jurors you acted reasonably - which is where a lawyer's skills are necessary.
Walter Reaves has over 30 years of criminal defense experience. If you have been arrested for defending yourself and need help, contact our office at (254) 296-0020.
Can I get deferred adjudication in a DWI case?
One of the most common questions I hear is whether you can be placed on "deferred adjudication" for driving while intoxicated. The simple answer is NO.
If you don't know, deferred adjudication is a form of supervision - i.e. probation. The conditions of supervision are basically the same; the difference is in what happens in the end. In regular probation cases, you will complete the period of supervision and be released. That is basically the end of it. You still have a criminal conviction, and it will still appear on your arrest record.
Deferred adjudication differs in what happens when you are originally placed on supervision. Instead of finding you guilty the court "defers" a finding of guilt. In other words, they don't find you guilty, and instead carry the case forward while you are on supervision. If you successfully complete supervision the charges are dismissed. You can then truthfully say you have never been convicted of a criminal offense. In some cases, you can also obtain an "Order of Non-Disclosure", which basically seals your record.
Unfortunately, the legislature has taken away the ability to receive deferred adjudication in a DWI case. There are a few other cases where you cannot receive deferred, but most of those are serious felonies. Chalk up DWI to influential lobbying groups.
It's important to know that a conviction for driving while intoxicated is an offense with some significant collateral consequences. The inability to obtain deferred adjudication is simply one of those.
Should I take a polygraph?
If you are the target of an investigation - i.e. a suspect - you might be asked to take a polygraph. Should you take one or not? As you might guess - since this is advice from a lawyer - the answer is it depends.
The answer usually depends on why they are asking you to do it. They might be convinced you are guilty and want you to take one and fail so they can get a confession out of you. Or they might hope to get a confession before you even take it. How do they do that? If you fail, they tell you the results and use all the interrogation techniques they have been taught - which is usually to convince you that you'll be better off - and feel better - if you just admit what you did. Some police polygraphers also talk with the person before they even take the test, and convince them they would better off confessing before they take the polygraph and flunk it.
Sometimes investigators do not know who to believe. While this situation is rare, they might want something to fall back on - which would be a polygraph. This may happen in cases where it's not clear what happened, and there are two or more people telling equally convincing stories.
The problem with making this decision is that polygraphs are not always accurate - that's why they can't be used in court. A recent story shows that one particular machine has a history of problems that have largely been ignored. That means that you might fail even if you are telling the truth. If you truly are innocent and you fail, you suddenly become a suspect.
So do you look guilty if you refuse? Maybe - but what difference does it make? The police still have to investigate and obtain evidence. If you refuse they will probably look harder. On the other hand, you also appear guilty if you fail a polygraph - and most police officers won't even entertain the idea that the test was wrong.
The decision to take a polygraph is not one you should take without talking to a lawyer. Generally, if I don't know anything about the investigation my advice is always going to be not to take one. If I'm convinced the police simply want to use the polygraph to eliminate the individual as a potential suspect I might be more inclined to recommend it; that's only if I don't think there's a possibility the investigation will re-focus on them if they fail. The decision is not one that should be made without knowing as much as you can about the evidence - both from the police and the client.
Even if you do decide to take the polygraph, who administers it is important. It is best to have it done by someone not affiliated with law enforcement. It is even better to make arrangement for the test yourself.
You probably have more questions now than when you started reading this. There's a reason for that - as I said at the beginning the answer is "it depends." You can only make the decision after knowing all the facts and evaluating the risks and rewards. An experienced lawyer is the best person to make that decision - it will be worth whatever you pay.
What is the difference between simple assault and aggravated assault in Texas?
When an individual is charged with a certain kind of assault, he may be confused as to what it actually all means. Were you charged with simple assault or aggravated assault, but you don't understand the difference between the two? Here are the basic differences:
The biggest difference is that simple assaults are classified as misdemeanors, while aggravated assaults are classified as felonies. Misdemeanors carry small fines and little to no jail time, while felonies may be punished with significant fines and lengthy prison sentences. A felony can also affect a person's life forever, as it can ruin his chances at jobs, voting, buying firearms, and even traveling outside of the country.
Simple assault encompasses minor injuries, touching, and threatening words or behavior. The alleged victim of the assault has to truly fear being hurt by the actions and words of the other person.
Aggravated assault involves serious injuries or the addition of weapons into the equation. Even if someone aimed a gun at another person with no intention of pulling the trigger, that could be considered aggravated assault.
The bottom line is that you don't want to be charged either with simple assault or with aggravated assault because neither one will have any kind of positive impact on your life. Texas takes assault cases very seriously, and you could face steep fines and jail time.
If you have been charged with assault in Texas and would like help from a criminal defense attorney, contact Waco assault defense lawyer Walter Reaves for a free consultation by calling 254-296-0020.
What are the differences between expunction and nondisclosure?
Expunction and nondisclosure are both excellent opportunities for individuals who have a criminal offense on their record that they would like to see disappear (or disappear as much as possible). They give some people a second chance at functioning in society without a black mark on their criminal record. However, the two options are quite different in what they can actually offer someone.
Expunction means that you can have a certain offense removed from your criminal record completely. After expunction, it’s as if the incident never happened. If you ever have to take the stand in another trial and you have to swear under oath that you've never been involved with the law, you can legally do that after an expunction. Expunctions can be very hard to get; they are generally given out in very specific, special circumstances. If you were arrested for a crime and never charged, or you were charged with a crime that was ultimately dismissed, you're probably eligible for an expunction.
An order for nondisclosure does not wipe your record clean, but it does make it so that most people cannot access your record. Only some government officials will be permitted to examine your record. The incident covered by a nondisclosure order will not be public knowledge, and most people will never know about what happened with your legal troubles. A nondisclosure order is available for people who have successfully completed deferred adjudication and have received a discharge or dismissal of the deferred adjudication.
If you think you may be eligible for a Texas expunction or a nondisclosure order, contact the Law Office of Walter Reaves in Waco at 254-296-0020.
I only had a very small amount of marijuana on me and I was still arrested. I thought it was decriminalized in Texas?
Some states have decriminalized possessing small amounts of marijuana, but unfortunately for you, Texas is not one of them. In fact, Texas takes nearly every kind of drug arrest extremely seriously. Even if you're holding just a tiny bit of marijuana for a friend, if it's found in your possession, you could end up serving jail time.
If you are found guilty of possessing two ounces or less of marijuana, you will most likely be convicted of a Class B Misdemeanor and can serve up to 180 days in jail and face up to a $2,000 fine. There's also a chance the judge will order drug treatment and/or community service. You will also lose your driver's license for 6 months or more.
State Rep. Harold Dutton (D-Houston) has been trying to get House Bill 184 passed, but is meeting quite a bit of opposition. His proposed legislation would knock the charge for individuals with one ounce of marijuana or less down to a Class C misdemeanor, instead of being a Class B misdemeanor. That would mean, if convicted, a person would face a $500 fine and no jail time. Dutton sponsored an identical bill in the 2011-2012 legislative session, but the bill died in committee.
There may not be much you can do to sway our state's lawmakers, but you can get a good drug crime attorney to take your case on. Many times, law enforcement officers violate search and seizure laws; if that is what happened in your situation, you may be able to get the charges thrown out. Contact Waco drug crime defense attorney Walter Reaves by calling 254-296-0020 to schedule a free consultation.
What is an ignition interlock device?
Use of an ignition interlock device is often one of the conditions and terms of a DWI conviction in Texas. If you've been convicted of two or more DWIs in a five-year period, you are required to outfit any vehicles you drive with this device. Also, depending on the severity of your DWI, you could be ordered to use the ignition interlock device even if is your first offense. That is really up to the judge when your sentencing is taking place.
An ignition interlock device consists of a tube that feeds into electronic equipment attached to a vehicle’s ignition system. A driver must submit a breath sample before he is able to start the car. If the breath sample indicates a blood-alcohol concentration (BAC) over a specified limit, the car will not start. Additionally, the driver will be prompted to submit breath samples while he is driving, to make sure he did not start drinking after the car started.
If someone is ordered to have an ignition interlock device installed, she is responsible for paying for the device and any installation charges, and must make sure installation is complete within 30 days. Any court-ordered installations have to be performed by service centers certified by the Department of Public Safety.
In addition to having the ignition interlock device installed, the person must also obtain a restricted interlock license, which authorizes her to drive only if the device is installed. A restricted interlock license will not be issued if the individual's regular driver's license is expired or suspended, or if she has not paid the required fees.
If you have been arrested for DWI and need help avoiding a conviction, contact Waco DWI defense lawyer Walter Reaves at 254-296-0020 for a free consultation.
The offense I've been accused of is pretty minor and I think I should be fine. Do I still need a lawyer?
It depends what you consider to be "minor," but there's a very good chance that you still need to consult with an experienced criminal defense attorney. Most attorneys, including our office, will offer free consultations—so you have nothing to lose by talking to a lawyer to find out how serious your case could actually be.
It's easy to say you're going to represent yourself in court because you know you are innocent or because you think it's going to be quick and pretty cut-and-dried. However, when you actually set foot in that courtroom and your heart starts to pound, your palms get sweaty, and your mind starts to race, you begin to wonder why you thought it was a good idea to do this alone. Remember this: lawyers do this almost every single day. This is their job. Being convicted of a crime is stressful enough—don't put the entire weight of a trial on your own shoulders.
We've met with people who say that if they go to court they will "just" be convicted of a misdemeanor. Yes, a misdemeanor is not as serious as a felony, but that doesn't mean it couldn't have a harsh impact on your life. Misdemeanors can carry fines and jail time; you could lose your license and ruin future job prospects.
Did you know that in Texas, your first DWI conviction can carry many penalties, including a $1,000 per year surcharge that you have to pay for three years? Did you know that some drug cases also carry license suspensions? Or that a conviction for assault of family violence carries federal firearm restrictions?
The point is, don't assume your crime isn't a big deal. An experienced criminal defense attorney on your side will make sure things go smoothly by fighting on your behalf.
If you've been accused of a crime in the Waco area, contact Texas criminal defense attorney Walter Reaves at 254-296-0020 for a free consultation.