FAQ's: Texas Criminal Defense, DWI, Sex Crimes & Gun Laws
When the stakes are high, experience matters. If you have been arrested or charged with a crime in Texas, it is critically important to find a criminal defense attorney who is experienced and compassionate, and both aggressive and knowledgeable to protect your rights. Someone who is well-connected within the industry and knows how to get bring about the best possible resolution for your case.
We understand that being involved in a criminal defense case can be frightening for those involved. Understanding the law and the process can make it easier for you. This section contains scenarios and a compiled list of common questions and answers about criminal defense law cases.
Texas DWI Questions and Answers
I've had a few drinks and I'm behind the wheel. There are flashing lights in my rear view mirror. What do I do now?
- Using a blinker, pull over as soon as possible in a safe manner;
- Keep your hands on the steering wheel for officer's safety and know where your driver’s license and insurance are readily available;
- Be respectful to the officer but no need to make admissions. The officer is looking to build his case from the moment he first began observing you driving;
- The officer should have his video running from his patrol unit and a microphone on his lapel. Keep in mind that everything you do and say is being recorded;
- You do not have an obligation to conduct any roadside field sobriety tests;
- If the officer is going to arrest you, there is usually nothing you can do or say to convince him or her otherwise; ask to call your lawyer and a friend or family member who can help make your bail/bond. You may ask the officer if you can write down the names and numbers of a few folks in your cell phone because most people cannot remember numbers once their cell phone is placed into property and they are in jail.
- Do not blow into a Breathalyzer or consent to a blood draw. If they want evidence to further build their case, make the Government get a warrant for it.
- Have someone post your bond.
I was arrested for DWI, and I've made bail – what should I do next?
- Call your lawyer and schedule an appointment
- Shower, eat and get some rest so you are clear headed when consulting with your lawyer.
- Bring all of your paperwork with you to see your lawyer, including any “DIC” Forms provided regarding a breath or blood test and a temporary driving permit.
- Write down some notes about the day of arrest, the timing of events and anything else that may be important to remember while consulting with your lawyer.
If I’m stopped by the police (law enforcement) should I answer any of their questions regarding drinking?
Everyone has a Constitutional right to Remain Silent. Exercise it.
Do I have to get out of my car if they order me to?
Citizens should cooperate with law enforcement to the extent that it does not infringe on their Constitutional Rights. A citizen may step out of his/her car when asked to do so, but is under no obligation to perform Standardized Field Sobriety Tests.
Do I have the right to an attorney when I am stopped for a suspected DWI (or DWI investigation)?
Everyone has a legal right to representation when being questioned by law enforcement. Ask for your lawyer. Have my number in your cell phone. (713) 201-6767.
Can they take my driver’s license from me at the time of the stop and refuse to return it?
During a DWI Investigation, law enforcement will confiscate a citizen’s driver’s license and mail it to Austin. Hire a lawyer to assist you with these license issues.
What does “No-Refusal” mean?
No-refusal does not mean no-refusal. It means that when you do refuse to consent to a breath test or a blood draw, the Government must apply for a Search Warrant to draw blood from you. Let them get a warrant.
Can the police search my car at the time of the traffic stop?
Unless given consent, a police officer may not search your vehicle prior to an arrest unless the officer detects an odor of marihuana.
What is a field sobriety test and do I have to take it?
During a DWI Investigation, an officer certified to conduct Standardized Field Sobriety Tests may request a citizen to do three roadside tests. These tests are NOT pass or fail. The citizen’s performance only gives the officer clues in his subjective opinion as to possible intoxication. These standardized tests are approved by the National Highway and Transportation Safety Association (NHTSA) and must be conducted in the same manner every time. Any variation of these tests invalidates the entire test.
- The first test is the Horizontal Gaze Nystagmus Test (HGN).
- The second test is the Walk & Turn (Walk the line).
- The third test is the one leg stand (Hold one foot 6 inches above the ground and count out loud to 30 or until the officer tells the citizen to stop).
Do I have to let them take a blood or urine sample?
You do not have to let the Government have samples of your blood or urine. If they want it, they can get a warrant for it.
What happens if I refuse to take one of these chemical tests?
If you refuse a chemical test, your driver’s license privilege MAY be suspended, but this issue can be ap-pealed. Hire a lawyer immediately as to not miss any time sensitive deadlines in appealing the suspension.
Will my driver’s license automatically be suspended if I’m arrested for DWI?
No. A citizen has 15 days from the date of arrest to appeal the suspension or 40 days from the date of arrest before the suspension begins.
What is an occupational or restricted driver’s license? (ODL/RDL)
An occupational or restricted driver’s license may be issued from a court to allow a citizen to legally drive during a suspension period. An occupational license is not only to and from work, but may be used to run house-hold errands and/or attend spiritual services on Sundays. Each license varies from case to case.
What should I do if I’m the passenger in the car and we’re pulled over for DWI? What if as a passenger, I’ve also been drinking? Can they arrest me for public intoxication?
As a passenger, sit tight and remain quiet. An investigating officer may ask you how much the driver has had to drink. Snitching on the driver will not keep you from being arrested. Typically, an officer will allow the passenger to call for a ride home from the scene. Public Intoxication is if a citizen is in public and becomes a danger to himself/herself or others as a result of being intoxicated.
At what point in the arrest process am I entitled to contact an attorney?
A citizen may ask for an attorney at any time. While he or she may not be able to contact one, the request alone blocks law enforcement from further questioning of the citizen.
If I’m convicted of DWI, does that make me a convicted felon?
A first time DWI charge is a Class B Misdemeanor, unless breath or blood was provided and the results were .15 or greater; then it becomes a Class A Misdemeanor. Second time DWI Charges are Class A Misdemeanors. Three or more DWIs are charged as felonies if the previous two DWIs can be proven. If you are convicted of a misdemeanor DWI, you are not a convicted felon in the United States. However, Canada does consider any level of DWI as a felony and will refuse entry into their country.
How long will a DWI arrest or DWI conviction stay on my record?
A DWI arrest and conviction will stay on a citizen’s criminal history forever. The only way to have a record expunged is if the case was dismissed or if the case was won at trial (an acquittal).
What does .08 blood alcohol level mean?
A .08 blood alcohol level means the concentration of alcohol in a citizen’s blood stream. However, because alcohol is absorbed into the blood stream and then eliminated, a person’s blood alcohol level may be different at the time of driving than at the time of the chemical test.
Will I be sentenced to serve jail time for a DWI?
Some probation sentences require 3-10 days in the county jail as a condition of probation.
If I feel too drunk to drive, can I sleep my car?
If you are going to sleep in your car, make sure the engine is not running or sleep in the passenger seat so that an officer cannot mistake you for “operating” a vehicle. It essentially becomes your word versus the Officer’s word.
How long does the process take to resolve a DWI case?
The wheels of justice turn slowly. These matter may take 6 months to several years to resolve depending on the jurisdiction and complexity of the case.
What's an SR-22
A Financial Responsibility Insurance Certificate (SR-22) is a type of motor vehicle liability insurance. An SR-22 can be issued by most insurance providers and certifies that an individual
has the minimum liability insurance as required by law. An insurance provider will automatically notify the Texas Department of Public Safety (DPS) when an SR-22 is
cancelled, terminated or lapses.
For more information on getting and SR-22 visit www.spartansr22.com.
Texas Criminal Defense Questions and Answers
How can I get my record expunged?
Expunction is available for cases that were either DISMISSED or where the accused was found NOT GUILTY. Until a record is expunged, it still shows the arrest, charge and outcome.
If someone successfully completed a DEFERRED ADJUDICATION probation, there is a tool for getting that removed from the accused's PUBLIC record, but the Government will always know about the charge. This is different from an expunction where it's as if it never, ever happened. This is accomplished through a PETITION FOR NON-DISCLOSURE.
For juveniles, folks think their record is automatically sealed when they turn 17 or 18. NOT TRUE. Juveniles MUST go back and SEAL their records to keep it from affecting their futures.
How do I get someone out of jail?
While anyone may post a cash bond, I prefer to use a reputable bonding company to get someone out of jail. Call your lawyer for a recommendation if you do not know where to start.
Should I hire a criminal defense attorney before I seek help from a bail bondsman?
A client is more helpful in assisting in the defense of his/her case if she is on bond. I tell family members to get the client on bond and then come see me immediately.
Can I represent myself?
“He who represents himself has a fool for a client.” -Abraham Lincoln
Anyone may represent themselves, but I highly discourage it. There is a reason a lawyer must spend three intense years in school plus pass a three day exam to become licensed to practice law and that only gets a lawyer to a place where they may start earning experience and making connections. The RIGHT lawyer will benefit you in ways you may have never considered. You get what you pay for.
What should I expect from my attorney?
You should expect your attorney to lay out a defense strategy, obtain all the State’s evidence, go over the evidence with you, guide you with recommendations as to how to counter the State’s evidence and stick by your side.
Lawyers should not belittle you. Our firm philosophy is that we are all on the same team. Loyalty goes a long way.
What is attorney-client privilege?
Communications made between the attorney and client in the presence of ONLY the attorney and client are confidential and private.
What is the difference between criminal law and civil law?
In civil court, folks fight over contracts and money. In criminal court, we are defending folks’ freedom and liberty.
If my attorney is representing me, do I still have to go to court?
In criminal court, you must always be present and on time or your bond will be forfeited and a warrant will be issued for your arrest. Both the attorney and client must be present in criminal court.
What are the top reasons why my record cannot be expunged?
A criminal record may only be expunged under two scenarios: a dismissal or an acquittal (found not guilty). If you plead guilty to a criminal allegation, you cannot get an expunction.
What is the difference between a dismissal and expungement?
A dismissal means the prosecutor has “dropped the charges.” However, the arrest for the allegation is still on your criminal record. An expunction takes everything off your record as if the incident never occurred.
What does it mean to be considered “a person of interest?
“A person of interest” is a fancy way to say “suspect.” If you become a “person of interest,” call a criminal defense lawyer immediately.
What is the difference between a felony and a misdemeanor?
Misdemeanors may be punishable up to 1 year in the county jail, whereas felonies may be punishable up to life in prison or even death in capital cases. Some folks may be eligible for a form of probation in lieu of incarceration.
A felony conviction strips citizens of some privileges and rights such as owning firearms or the ability to vote.
Misdemeanors classified as “crimes of moral turpitude” carry far-reaching consequences such as the inability to sit on a jury or obtain Government licensing such as becoming a real estate agent, certified public accountant (CPA) or even leasing an apartment. Crimes of moral turpitude include theft and prostitution.
Will I go to trial?
Most cases do not go to trial. However, it’s important to have a trial lawyer who is prepared and willing to take your case to trial. A borderline case may be dismissed on the eve of trial if the prosecutor knows the defense attorney has a reputation for taking cases to trial and the prosecutor is not confident the case will get beyond a reasonable doubt at trial. After all, who wants to lose?
What is a plea bargain?
If there is no defense and the evidence is stacked against the defendant, the defense and the prosecution may work out a “plea bargain” or agreed punishment that is not only a win/win for both parties and eliminate the need for trial.
What is reasonable doubt?
Reasonable doubt is not defined by law. It’s individual to each person. However, if parties are fighting over money, the jury would have to believe the evidence by a “preponderance of evidence” or 51% - a tipping of the justice scales – in order to award one of the parties. If the Government wants to terminate a parent’s rights to their child(ren), the jury would have to believe the evidence is “clear and convincing evidence.” When liberty and justice are at stake, the proof must be even greater than that required to terminate a parent’s rights. The evidence must be proven beyond a reasonable doubt. If the Government were trying to take your parental rights from you, how sure would you want them to be about the evidence against you? …and beyond a reasonable doubt is even higher than that.
Do I have to go “downtown” with the police for questioning, even if they say I am not under arrest?
It is always best to consult an attorney prior to engaging with law enforcement. You may delay meeting with law enforcement to consult with a lawyer first.
What is a criminal appeal?
If a jury returns a guilty verdict, the Defendant may appeal the case. However, the appellate court reviews the trial court’s legal rulings to ensure the defendant was given a fair trial, but the appellate court does not use the facts of the case at trial to overturn a conviction.
What is double jeopardy?
Double jeopardy means a defendant cannot be tried twice for the same offense. Jeopardy attaches once a jury is selected and the jury has taken its oath.
What is excessive use of force?
Force should be used in only the minimum amount needed to achieve a legitimate purpose. Police brutality is a direct violation of the laws within the police force. The use of excessive force is also a direct violation of the Fifth and Fourteenth Amendments of the U.S Constitution regarding cruelty and protection of the laws.
What happens if a police officer does not read me my rights?
Despite what is seen on television, the Miranda rights only come into play during a custodial interrogation. If a defendant is in custody and being questioned by law enforcement, the defendant should have been told his/her rights – Miranda rights.
How do I know what evidence the State has against me?
This year a new law came into effect entitled the Michael Morton Act. This Act provides that the prosecuting attorney must turn over all of the State’s evidence to the defendant and his/her attorney. At our firm, once we have received all of the State’s evidence, we like to bring our clients into the office and go over the evidence with the client as we discuss our defense strategy going forward.
Does it matter which county I am charged in?
The laws of the State of Texas are uniform from county to county. However, the practices of each county vary. It is always a great idea to have counsel who works on a regular basis in the county in which you are charged. Our lead attorney, JL Carpenter-Rambin, is a former prosecutor from Galveston County, with a strong criminal defense practice in Harris County and reputable professional relationships in Brazoria and Fort Bend Counties.
What happens if I ask for a lawyer and the police officer continues to ask me questions or continues to talk to me?
If you ask for a lawyer but the officer continues to question you, any admissions or evidence obtained after requesting a lawyer may not be admissible at trial.
What is the role of probable cause when it comes to police searches?
There are various standards or burdens of proof in the justice system. Probable cause is the lowest burden. An officer only has to meet the burden of proof of probable cause to make a warrantless arrest or to obtain a warrant. This standard is much different than that of the prosecutor’s at trial, which is beyond a reasonable doubt.
What is perjury?
Perjury is intentionally lying while under oath.
What is obstruction of justice?
Obstruction of justice is intentionally interfering with the investigation or prosecution of a suspect/defendant.
What is the role of the jury in a criminal trial?
The role of the jury in a criminal trial is to listen to all of the evidence and make a unanimous decision as to the guilt or innocence of the defendant. The jury is the trier of fact. The judge rules on the law.
Texas Sex Crimes
Can my spouse or legal partner be forced to testify against me?
In a criminal case, the spouse of the accused has a privilege not to be called as a witness for the state. This rule does not prohibit the spouse from testifying voluntarily for the state, even over objection by the accused. A spouse who testifies on behalf of an accused is subject to cross-examination.
Can my spouse drop the charges?
A spouse may execute and sign an “Affidavit of Non-Prosecution” putting the prosecuting attorney on notice that the spouse does not want to go forward, but the prosecuting attorney may still proceed in prosecution if the Government has evidence the allegation occurred without the testimony of the spouse.
How do I find out if I have an outstanding warrant?
Call a local and reputable bonding company.
What is the difference between assault and battery?
Fundamentally, there is no difference in assault and battery. The difference is the legal term used in each jurisdiction. In Texas, the term used is “Assault.”
What makes a Sexual Assault of a Child Charge "Aggravated?"
A Sexual Assault of a Child Charge is aggravated when:
- causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode
- by acts or words (can be occurring in front of the victim, doesn’t have to be said directly to the victim) places the victim in fear that any person will become the victim of an offense or that death, serious bodily injury, or kidnapping will be imminently inflicted on any person
- uses or exhibits a deadly weapon in the course of the same criminal episode;
- acts in concert with another who engages in conduct directed toward the same victim and occurring during the course of the same criminal episode; or
- Administers or provides flunitrazepam, otherwise known as rohypnol, gamma hydroxybutyrate, or ketamine to the victim of the offense with the intent of facilitating the commission of the offense
- the victim is younger than 14 years of age; or
- the victim is an elderly individual or a disabled individual.
What is Indecency with a Child?
Indecency with a Child occurs if a person, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person:
- engages in sexual contact with the child or causes the child to engage in sexual contact; or
- with intent to arouse or gratify the sexual desire of any person:
- exposes the person's anus or any part of the person's genitals, knowing the child is present; or
- causes the child to expose the child's anus or any part of the child's genitals.
Does the age of the accused matter?
Yes. It is an affirmative defense to prosecution if the actor was not more than three years older than the victim and of the opposite sex and if the actor did not use duress, force, or a threat against the victim at the time of the offense;
What should I do if I am contacted by the police to speak to them about an allegation of Child Sexual Abuse?
Retain counsel. Let your attorney speak to law enforcement.
How can I defend myself against a false accusation of Child Sexual Abuse?
Hire a lawyer to represent you in this matter.
Does Possession of Child Pornography violate both State and Federal law?
Yes. If the pornography was obtained by the internet or through the mail, federal law governs. If strictly obtained in state not by internet or mail, Texas law governs. In either case, possession of child pornography is a violation of the law.
How can I defend myself against an accusation of Possession of Child Pornography?
Retain counsel to represent you in this matter.
Is there a way for someone who is required to register as a sex offender to deregister or terminate their duty to register?"
There are limited scenarios when one may be permitted to deregister. Seek the advice of an attorney to ascertain if this is applicable to you.
Texas Gun Laws
I have a felony on my record. Can I own or possess a gun in Texas?
Texas law allows a convicted felon to possess a gun where he resides once five years have elapsed from the felon’s release from prison or parole. Federal law states that a felon may not own a firearm, and the only way to own one in Texas is if it is completely manufactured in Texas and does not pass through interstate commerce channels.
If I have a felony on my record, can I ever lawfully own or possess a firearm under federal law?
No, unless the crime is punishable by less than 1 year imprisonment or civil rights have been restored (ie. judge restores civil rights upon release from community supervision or the governor has issued a pardon)
I have been convicted of an assault involving family violence. Can I own or possession a firearm?
If you have been convicted of Class A or felony Assault Family Violence, you may not own a gun under Texas law until 5 years have elapsed from the date of release from jail or community supervision.
If I have been convicted of an assault involving family violence, can I ever lawfully own or possess a firearm under federal law?
No, unless the crime is punishable by less than 1 year imprisonment or civil rights have been restored (ie. judge restores civil rights upon release from community supervision or the governor has issued a pardon)
I was placed on deferred adjudication in Texas for a felony. Can I own or possess a firearm?
Only when a defendant has been discharged from deferred adjudication by a court order may the defendant own or possess a firearm. The defendant may not own or possess a firearm while on deferred adjudication.
I have a felony conviction. Can I hunt with a black powder firearm in Texas?
Only if it is an antique weapon or a replica of an antique as defined by Texas Penal Code 46.01(3). Muzzle loading black powder rifles are not allowed unless they are antiques or replicas.