When "guilty" is not an option, hire the Guest and Gray team.

Chief of the criminal defense division

Criminal Law

DWI, Drugs, Assault, Probation Revocation, Sexual Offenses, Theft, Juvenile Defense. Felony and Misdemeanor Offenses in State and Federal Court.

DWI

Driving While Intoxicated, DWI and Your Drivers License
Forney, Texas DWI Defense Lawyer.

Juvenile Law

Sexual Offenses, Drug Offenses, Assault and Violent Crimes, Theft, Truancy/School Related Criminal Charges.

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We convict a lot of innocent people in Texas. For a lucky few defendants, we figure out they are innocent before we take away years/decades of their life or put them to death. Let’s say you are arrested but it turns out that there was no probable cause and the charges are dropped, can you sue and hold anyone in the government accountable? Sure you can sue, the better question is, can you win? That can be tougher that you’d think, even for blatant constitutional violations, like arrests without probable case.

The reason for this is qualified immunity. Qualified immunity is a monument of police state judicial activism, in which our federal courts invented a doctrine that shifts the costs of wrongful arrests (sitting in jail, bail money, hiring a lawyer etc) to the public. What started as a limited common law defense grew as the court added more and more hurdles for Plaintiffs to clear to bring a case and survive summary judgments.

Again, the federal doctrine of qualified immunity is not a law passed by Congress, federal judges just made it up, and it protects officers who make mistakes on the job. I don’t have immunity in my law practice, you probably don’t have immunity in your job (although negligent doctors in Texas bought practical immunity with the help of TLR), but government actors do.

You may remember that lawsuits against the State government for violations of the US Constitution are called 1983 suits. So if you want to sue the local police, sheriff or jail you would probably use a 1983 suit and file in federal court.

What do you have to prove in a false arrest case? That the police made an arrest without probable cause, and considering the totality of the circumstances, acted unreasonably.

Here’s a nice run down from a recent case.

To demonstrate the inapplicability of the qualified immunity defense, the plaintiff must satisfy a two-prong test: “First, he must claim that the defendants committed a constitutional violation under current law. Second, he must claim that the defendants’ actions were objectively unreasonable in light of the law that was clearly established at the time of the actions complained of.” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir.2005) (citations omitted); see also Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir.1990), abrogated on other grounds as recognized in Martin v. Thomas, 973 F.2d 449, 455 (5th Cir.1992) (“A defendant is entitled to qualified immunity unless, ‘on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue….’ ”) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). The Court may conduct the two-pronged inquiry in any order. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

Crostley v. Lamar County, Texas, 717 F.3d 410, 422 (5th Cir. 2013)

 

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The NFL’s response to the Ray Rice domestic violence case has generated some much deserved criticism. But what the media rarely talks about is the domestic violence problems in the law enforcement community. Let’s compare the problem the NFL faces with domestic violence vs Law Enforcement. Here is a case from California in which an officer brutally pummels a 51 year old grandmother. This video garnered some national press, but nothing like the Ray Rice case. That probably has more to do with our celebrity culture, but it is a sign that while we are focused on pop culture and sports, we are ignoring a much larger group of victims and assailants.

Click the link above and watch the video. Both videos display a level of violence and misogyny that are shocking, but only the NFL is being taken to task for it’s response to violence against women. With the sheer amount of police violence in America today maybe another assault on a suspect is just noise. In the United States the Government doesn’t even track police shootings, much less beatings.

Now let’s look specifically and law enforcement domestic violence. Here are some stats to scare the shit out of you from the National Center of Women and Policing-

- Law Enforcement families are 2 to 4 times more likely to experience domestic violence as the general population.

– The most common punishment for a police officer who commits domestic violence is counseling. Not a suspension or termination.

– A study from San Diego showed that whereas 92% of domestic violence cases referred were prosecuted, only 42% of cases against police officers were prosecuted.

This would also be a good time to remind the public about the blue wall of silence. Cops don’t snitch on other cops. There is also the concept of “professional courtesy” in which cops don’t arrest or investigate other cops. Put those two together and you create a situation where abusive dangerous officers are left to prey on the public, and their families. 

So while we are outraged that a guy who plays football did not get suspended long enough, or the assault was not taken seriously by the NFL we are ignoring an epidemic of police domestic brutality. There are few hundred NFL football players, meanwhile there are hundreds of thousands of law enforcement officers. The real epidemic of violence against women is by those wearing a badge, not carrying a football.

The militarization of law enforcement has spawned a culture of violence, confrontation, and control. Is it any surprise that this approach follows some home from work?

 

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So you have been arrested and you are worried about how this will affect “your record”? Well, you should be. In Texas, convictions last forever. And by forever, I mean it’s on your record until you get a pardon but in Texas we don’t really do pardons because our Governors hate defendants so, forever. However, part of our defense strategy is finding a way to minimize what records are available when you case ends. So let’s start with what exactly is your “record?” When people talk about their record they usually assume there is some formal criminal history branch of the government , perhaps in Austin, that has all the bads thing you done in a file somewhere.

Not exactly, whenever you make contact with the criminal justice system in Texas records are created. When you are arrested there is a mugshot, bond paperwork, arrest affidavit etc. Those are all public records. When you are case is filed more records are created. There is an information or indictment, a file at the clerk’s office with more information about your case, and perhaps some online information that the county provides.

Part of your defense lawyer’s job is finding outcomes that maximize your ability to get rid of these documents. For example, if you get deferred adjudication probation in Texas you are not eligible for an expunction, but you may he eligible for a non disclosure (having your records sealed). Some offenses can not be placed on deferred probation (DWI etc). So if you want your DWI “off your record” at the end of the case, you may have to have a trial and hope for a not guilty verdict because not guilty verdicts can be expunged.

It’s one reason I encourage clients to participate in pre trial diversion programs if they are offered. Because pre trial diversion cases can be expunged as well (in Dallas they call this a conditional dismissal or memo agreement).

Another component of your record is what shows when the case is finalized. That is, how does the judgment read and how will that affect your future employment chances? For example, if you are on deferred probation you have plead guilty (or no contest) but you have not been found guilty. So if a job application asks you about convictions, you can say you don’t have any. But if a job applications asks about arrests or pleading guilty, then you will have to provide details.

This is also another reason to hire a lawyer immediately after you are arrested. If you get a lawyer on the case right away there is a greater chance that a positive result can be achieved before the case is filed. Preventing a case from being filed, or having the charges reduced before they are filed is a big win. For example, we had a case recently where a client was facing a potential 25-99 year prison term on an assault charge. We got started right after the arrest and worked out a misdemeanor diversion early. We had the case investigated and ready to present to the prosecutor before the prosecutor had even had a chance to look at the file. If we had not been hired early, then the State could have indicted our client on life in prison felony, and those records would have been out there until we got the case finalized.

Your criminal record is one of the most important aspects of the plea bargain process and your defense lawyer should be able to explain what your options are if you are accept any deal. Remember that deferred cases can not be expunged, and that if you are concerned about your criminal history hire a lawyer immediately after you become a suspect.

 

 

 

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In Texas our pro conviction appellate courts have blessed the practice of law enforcement profiling drivers and investigating routine traffic stops as drug trafficking.  This practice involves an officer deciding that you are a drug dealer and then following you until you commit a traffic violation.

I thought racial profiling was illegal in Texas?

It is. But to get anywhere with that you an officer honest or dumb enough to testify that race was a factor in his investigation. LEO learns quickly to keep those thoughts to himself. Our numerous traffic laws allow great cover for profiling. DPS knows to just follow who they want to stop until they can find some evidence of a traffic violation. That’s considered great police work in Texas. We allow and encourage non-racial profiling. Which means a DPS Trooper can list any reason but race as a reason to follow you and wait for a traffic violation and then search for drugs.

So what do cops look for when they want to profile a driver for transporting drugs?

This brings us to our case of the day, Neil Lawrence vs. The State of Texas.

What happened?

Neil was driving through Potter County (Amarillo) with a lot of pot in his car. Neil is spotted by a DPS Trooper. The DPS Trooper admits that he immediately profiled Neil as a drug mule because “it was a clean car, with a single male driver, exhibiting an out-of-state license plate, and traveling east.” Neil’s car was eventually searched and the cops found a lot of weed, which holy shit it’s embarrassing how our state still considers possessing too much forbidden plant material an offense worthy of prison. What is wrong with us? Anyway, Neil was convicted and filed an appeal because the officer stopped him for a traffic violation, but investigated the case as drug trafficking. The conviction was upheld on appeal.

Lesson No. 1 from this case- Don’t be have out of state plates and drive alone in a clean car, otherwise the cops will assume you’re riding dirty. This is common practice for DPS in many counties. Traffic tickets are boring and it can feel really important to make a felony drug bust, so DPS Troopers will have fun by trying to guess who has drugs on them and bringing out their Clever Hans K-9 team.

And guess what? There isn’t any penalty for Troopers who guess wrong and treat an innocent driver as a drug trafficker (unless they go for the DPS favorite roadside body cavity search). Locally, the go-to DPS stop for profiled drivers is defective license plate lights, or a “dirty” license plate. If you get stopped for that on 80, 20, or 30 headed east, you can expect a K9 unit in your near future.

Things not to do when you are transporting drugs and stopped by DPS.

Neil was stopped for driving on the shoulder and the Trooper immediately went into narcotic investigation mode. Now the 4th Amendment usually requires an officer to detain a driver only as long as necessary to investigate a traffic stop, but we have effectively repealed the 4th Amendment in Texas to make it easier to uphold drug convictions. Ergo, we’ve expanded that rule to allow for DPS fishing expeditions for drugs if DPS can list a few reasons to think you have drugs.

So what makes DPS think you are carrying drugs? In Neil’s case the officer listed the following as reasons to profile Neil as a drug dealer-

– Neil’s vague answers to questions propounded by the officer regarding his destination
– “erratic” hand and foot movement indicative of nervous behavior
– nervous behavior growing when, according to the trooper
– Neil didn’t act happy enough when the Trooper said he would get a warning
– Neil’s failure to make eye contact, volunteering of unsolicited information, driving a rental vehicle under an expired rental contract and not knowing that it had expired, and having flown from Pennsylvania to Phoenix to drive to Oklahoma.

Lesson No. 2- Don’t act nervous. Nervousness alone isn’t supposed to be enough to justify an extended investigation, but it can be a factor. So be cool.

Lesson No. 3- Don’t drive a rental car if you are transporting drugs. Really, it’s something that DPS looks for. This goes double for an out of state rental car.

Lesson No. 4- Don’t be alone, but if you are going to drive with someone else have a back story that makes sense and that you both understand. Drug stop investigation 101 is to separate the driver and passenger and see if their stories match. So get the details of the backstory straight. Which brings me to no. 5

Lesson No. 5- Bullshit cover stories are easy to spot and will be used against you. Job interviews, family reunions, visiting a cousin or friend are pretty common cover stories. But it needs to make sense logistically and you better have the details down about your trip. That is, don’t say you flew to Las Vegas to borrow a car from some guy, but you don’t remember his last name or phone number, and you agreed to drive to Louisiana and leave the car with his cousin Peanut, who lives in a blue house near the creek,  but you don’t know the address. Which leads us to lesson No. 6.

Lesson No. 6- It’s always best to say NOTHING. Really. In Texas, all you have to do is hand over your license and insurance. After that, shut up. If you have to talk ask if you are free to go, ask if you are being detained, ask for a lawyer, assert your right to not answer questions, and never consent to a search. Be polite, and if the police search anyway, let them. Never try to stop a search.

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As you should be aware Guest and Gray’s criminal defense team has an office in Rockwall now. We don’t handle a lot of ticket level offenses, but I spent an hour in the Rockwall Municipal Court this afternoon and thought I’d share the experience.

Where is the Rockwall Municipal Court?

Well, it’s no longer near downtown, and your GPS may not put in the right location unless you use the 2860 Williams Street Address instead of 2860 Highway 66.  Here’s

From downtown Rockwall take 66 East, you have to turn left on Fannin because of construction, but stay on 66 and drive past some churches until you are sure you’ve past it and then it appears on the left right after Rest Haven funeral home.

From I-30 take 549 north and then turn left on Williams/66 and it’s on the right. That’s the best way to go, just take 30.

I’m a lawyer, how is docket handled?

You check in the with the bailiff in the courtroom. He will hand you your file. Then you sign the attorney sign in sheet on the table the city attorney is sitting. Get there early or you could be sitting for a while. If you reach an agreement you take that in front of the judge, she signs it and the court clerk gives you a copy to take to you client.

I can’t make court and need a continuance, what do I do?

You have send in a motion for continuance and least 24 hours before hand. I’d call the court and let them know. Here is the court’s own motion for continuance you can use.

Rockwall Municipal Court Motion for Continuance

I have warrants or outstanding fines  and need a payment plan-

Here is the financial information form to request a payment plan.

Rockwall Municipal Court Financial Information form

How do I request discovery in my ticket case?

With this form!

Rockwall Municipal Discovery Records Request

 

 

 

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First, you should understand what your rights are, and then we can discuss why the police did not read them to you.

You do not have to wait for Miranda warnings to remain silent or ask for a lawyer!

In Texas you only have to ID yourself if you are detained. If you are driving you have to provide proof of insurance. Beyond that you can remain silent, ask for a lawyer, refuse to answer any questions and ask “am I free to go” and “am I being detained?” If you want to say something say “I choose to remain silent until I can speak with a lawyer.” You do not have to answer any questions beyond identifying yourself. That means you don’t have to wait for the police to Mirandize you before you ask for a lawyer and quit talking. I will say that not cooperating will make most LEO’s angry, and they will threaten to arrest you or get in your face and yell at you about how bad it will be if you don’t talk, but it’s all a show to intimidate you. Just remain calm and keep quiet. If you need to say something ask for a lawyer, and ask if you are free to go. Rinse, repeat.

That being said, the police are only required to Mirandized you when you are in custody and being interrogated. That is what we call a custodial interrogation.

Who is considered in custody? 

You are in custody when you are either formally arrested or when you are detained and restrained in a way associated with a formal arrest. You would think this would mean anyone who is handcuffed is arrested, but our pro-conviction appellate courts have held that you can be handcuffed and not be under arrest for Miranda purposes. That’s how pro-state judicial activism works, you repeal constitutional protections to save convictions. Again, don’t wait until you are in custody to shut up and/or ask for a lawyer.

We have some tests that court use to decide who is custody, such as whether a reasonable person would feel free to leave or terminate the interview, or what degree of force the police used etc. Still, it’s better to not play those games and just lawyer up and be quiet.

Why didn’t the police read you your rights?

First, because they want you to talk to them so they wait as long as possible until they formally arrest you. The longer they keep you on the side of the road talking the easier it is to convict you. This is also the reason that if you voluntarily go to the police station they will tell you that you can leave whenever, because then you are not considered in custody and they don’t have to Mirandize you.

It is the LEO’s interest to not arrest you and to keep you talking. Until the point of arrest they can ask you whatever they want without Miranda warnings. So don’t wait to be arrested to remain silent and ask for a lawyer.

What is the law in Texas on Miranda warnings?

For that we go to the Code of Criminal Procedure section 38.22-

Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:
(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;
(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;
(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;
(4) all voices on the recording are identified; and
(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.
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So a detective has called you up and invited you down to the local police sheriff’s department for an interview? When you arrive they will tell you that you are free to go at any time, and that they just want to get your side of the story. THIS IS A TRAP. Here’s how it works.

First, they only tell that you are free to go so they do not have to Mirandize you. You have to be under arrest and/or in custody for your Miranda warnings to apply. By telling you that you are free to go, they can ask whatever they want without telling you about your right to remain silent, or right to end questioning, or right to have an attorney present. They do this because the do not want you to have a lawyer there. They want to trick you into confessing.

Second, the “get your side of the story” line is meant to diffuse your anxiety. The detective wants you to think that they are going to help you and that they have an open mind as to what you tell them. Here’s the deal, before you show up the detective has already decided if they think you are guilty. Nothing you say will change their mind. They are going to take parts of your story that fit their theory of how are you guilty and assume those are true, they are also going to assuming you are lying if you make statements that don’t fit their theory that you are guilty. It is a lose-lose situation.

They will keep pressing you to “tell the truth” even when you are. What they mean is “you better confess to what we think you did.” The detective may offer to speak to the judge, or prosecutor to help if you cooperate. Detectives are not empowered to make binding agreements to resolve a criminal case. Only prosecutors can do that, and you need a defense lawyer to work that out. There is almost no chance that after you give a statement the detective will do anything to help you. They will laugh about your confession while they file for the arrest warrant and forward your case to the prosecutor. They will not tell the judge anything to help you. To them you are a criminal who was dumb enough to come in without a lawyer. Don’t be that guy. Lawyer up.

DETECTIVES ARE ALLOWED TO LIE TO YOU

Really, with very few exceptions the police can lie about what evidence they have against you in order to get you to confess. They can say that other witnesses have come forward naming you as the guilty party. They can say they have your DNA or fingerprints. They can say that they have video of you committing the crime. Anything they want to get you to confess. It’s a game, and you don’t have to play along. One limited is expectation is that the police can’t falsify government records and show those to you to make you confess.  Remember, this is Texas, and we convict innocent people here with alarming regularity. Our criminal appeals courts are dominated by pro-conviction ex-prosecutors who have created one of the worst criminal justice system in America.

THIS IS AN INTERROGATION, NOT AN INTERVIEW

Have you ever wondered why innocent people confess to crimes they didn’t commit? One reason is that the interrogation techniques used by law enforcement are designed to break you down and make you say things that aren’t true. The Reid Technique is one example. Again, you are not prepared to handle an advanced interrogation, you don’t have a chance.

IF A DETECTIVE CALLS YOU CALL A LAWYER

This is a legal emergency. You need a local defense lawyer, someone who knows the local detectives and CID division. Someone who can help you plan out how to proceed. Detectives understand that if you have a lawyer they can not continue to harass you to get you to come in. Your lawyer can make them leave you alone. That is what you need. I’ve written about this before, but it bears repeating. NEVER DISCUSS A CRIMINAL OFFENSE WITH LAW ENFORCEMENT EVER. ALWAYS HIRE AN ATTORNEY FIRST.

 

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The State Bar of Texas has rolled out a program to help the refugee children in Texas and volunteer attorneys are needed.  Here are details on the upcoming training seminars in Dallas, there are also events in Houston and San Antonio. Here is the form you can fill out to volunteer, or attend a training seminar.

  • Wednesday, July 30: Informational session: “Unaccompanied Refugee Minors & Humanitarian Crisis at the Border: What’s Going On and What Can Attorneys Do?” 6-7 p.m., Belo Mansion, 2101 Ross Ave., Dallas, 75201. RSVP to Alicia Hernandez at ahernandez@dallasbar.org. Sponsored by the Dallas Hispanic Bar Association.
  • Thursday, July 31: CLE (.25 ethics): “Special Immigrant Juvenile Status Training through Human Rights Initiative,” noon-1 p.m., HRI Offices, 2801 Swiss Ave., Dallas, 75204. RSVP to Elisabeth Hagberg atehagberg@hrionline.org. Sponsored by the Human Rights Initiative of North Texas.
  • Friday, Aug. 1, CLE (.25 ethics): “Special Immigrant Juvenile Status Training through Human Rights Initiative,” noon-1 p.m., Perkins Coie, 500 N. Akard, Ste. 3300, Dallas, 75201. RSVP to Elisabeth Hagberg atehagberg@hrionline.org. Sponsored by the Human Rights Initiative of North Texas.

It seems that local cities and counties (which sadly includes Kaufman County) are racing against eachother topass symbolic ordinances to deny housing or other assistance to these children. Illegal immigrants are the newest “other“, a political football for demagogues to spike for the fans of authoritarianism.

If being a criminal defense lawyer has taught me anything, it is that laws are often in juxtaposition with basic morality and human decency. Being illegal doesn’t make an act wrong, any more than being legal makes an act right. The fact that these children are undocumented or ILLEGAL doesn’t change the fact that we owe a duty to the least among us, and as a nation of immigrants we should rise to the occasion to help these children in a time of crisis.

One thing that is missing in the current political discussion is the acknowledgement of our government’s role in creating this refugee crisis. Our war on drugs has empowered violent drug cartels throughout Latin America. Would you want your children to live in a nation with rampant cartel violence? Why should the parents of these children want any different?

If we are serious about reducing the demand for immigrants to come to America, we need to choose a new supplier for narcotics. That’s not all, policies from farm subsidies (corporatism) to our support of “regime change” during the cold war have all contributed to these huddled masses yearning to breath free at our border. That’s my quick way of saying we broke it, we bought it.

Of course for authoritarians the only answer to any problem is more law enforcement and more government; build a wall, send the National Guard etc. It’s that type of troglodyte logic that gave us a drug war in the first place. We can’t arrest our way out of an immigration crisis any more than we can arrest our way out of the public health crisis of addiction. There is no limited government version of a millitarized border. I find it odd that the party that speaks the loudest about limited government and liberty is rabidly endorsing our own Berlin Wall on the Rio Grande.

I hope that lawyers across the State who have some experience in immigration law will come forward to help these children in their time of need. Lots of lawyers complain about the State Bar, but this is a time to thank Bar President Trey Apffel for his work coordinating this legal relief effort.

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Potential Rockwall DWI clients are usually surprised to learn that they havd the right to refuse to participate in their DWI investigation. All you are required to do is provide your license and insurance. If you’ve been drinking at the Harbor and get pulled over you’re going to jail anyway. It’s just going to happen. Not getting arrested isn’t the goal, the goal is to not give the State fake junk science evidence (field balancing tests) they will use to convict of DWI (and DWI is the most expensive misdemeanor conviction in Texas).

That’s right, in Texas you do not have to answer any questions, including the most common DWI questions such as

– where you are going
– where you are coming from
– how much you have to drink
– what prescriptions you take
– what time was your first/last drink
– did you eat anything
– do you know why you were stopped

Guess what? If you have consumed two beers and tell the police that, they won’t believe  you, because everyone says they had two beers, so telling the truth won’t even help. And if you’ve had multiple drinks over a long period of time, (which means much of the alcohol would be out of your system), they won’t believe your time period.

Second, you DO NOT HAVE TO PERFORM ANY DWI FIELD TESTS, INCLUDING THE PEN TEST. If an officer asks to “check your eyes to see if you are ok to drive”, politely decline. It’s a set up and the test results can not be challenged later because no one can see your eyes but the officer. We can challenge the administration of the test, but our pro conviction appellate courts have ruled that there is very little an officer has to do right when performing the pen test to testify as to the “results” in trial. Remember, you are going to jail anyway, so don’t give the State any junk science field test evidence to use against you. Be a total refusal.

I’m usually asked how an officer will react to a total refusal. Usually not very well, they will threaten you, get in your face, intimidate you, keep repeating the same questions over and over while standing inches from your face. We are taught to be deferential to the police, and if the police are mad, most people are afraid and will comply. It’s a game to get you to participate in their DWI investigation and most people crack. If you can just be polite, ask for a lawyer, and refuse to answer any questions. Bonus points if you also ask if you are free to go. That’s it, just say “I want to remain silent and talk to a lawyer, am I free to go?”. See how easy that is.

Rockwall Pro Tip- Watch for this trick question from Rockwall PD or DPS. “On a scale of 1-10 how intoxicated are you? with one being ok, and 10 being completely drunk”. No matter what you answer, you give the cop what they consider a confession. Because you are admitting to being intoxicated. Just say nothing, if you can’t, then say zero.

You should always refuse a breath or blood test as well. Rockwall PD will often get a blood warrant, and that’s ok. Let them get a warrant, just don’t consent. When you consent to a search you give up many options to challenge the search later. Plus, confirming whether or not DPS tested your blood correctly (DPS lab employees have been known to fake their work product) is expensive.

Actually, don’t consent to a search of anything ever (your car, pockets, purse etc). If the police search anyway, don’t stop them, just sit back and try to relax and I’ll litigate that issue on the back end.

Yes you will go to jail anyway, but you will be a “total refusal” case, which means you didn’t give the State any junk science SFST evidence to convict you. That’s the point. Prosecutors, judges, and too many jurors really believe that a roadside balancing test can detect intoxication perfectly. But there are many reasons someone can struggle with a roadside balancing test besides intoxication and officers rarely if ever screen for those reasons. For example, if you tell an officer you’ve had knee surgery recently, or that you have bad coordination they will usually say “just do your best”. That line appears nowhere in their training manual, but it’s fake science anyway so who cares if we make up new rules as we go along?

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Our firm handles expunctions for all kinds of cases, and we spend a lot of time clearing up misconceptions about what the law is on expunctions in Texas. The number 1 misconception is that deferred adjudication probation cases can be expunged. So many lawyers were misinforming their clients about deferred expunctions, that deferred probation cases in Kaufman County now have a separate plea form that informs all Defendants that DEFERRED PROBATION CASES CAN NOT BE EXPUNGED, ONLY NON-DISCLOSED (some call this “sealed”). Quick lesson, expunction destroys all records pertaining to an arrest, non disclosure keeps those records from the public (but the Government can still view them and they still exist).

But that’s not what we are going to discuss today. Today’s misconception is that all dismissed felony cases can be expunged. Not so fast. The law in Texas places restrictions on the expunction of dismissed cases and a recent Dallas Court of Appeals case breaks down the law so let’s use that as our example.

Today’s case of the day is Bothwell vs. State, an appeal out of the 86th District Court in Kaufman County. 

What happened?

In 2008, Bothwell was indicted for indecency with a child by sexual contact. The complaining witness (CW) was Bothwell’s daughter. The CW alleged that Bothwell kissed her and touched her breasts and vagina. The CW wrote out a statement detailing the abuse, but later recanted saying she made it all up to please her mother. The CW recanted and re-alleged the events multiple times. Eventually the prosecutor dismissed the indictment out of concern for the CW’s mental health.  Bothwell wanted the records expunged, because being accused of sexual indecency with a child will ruin your life, and he wanted a way to put this event behind him.  So Bothwell filed a petition for the expunction in the 86th District Court of Kaufman County, the judge denied the petition. Bothwell appealed.

What’s the law on expunction for dismissed felony cases in Texas?

Great question. From the opinion-

Section 55.01 of the code of criminal procedure provides in pertinent part that a person arrested for commission of a felony is entitled to have the records and files of the arrest expunged if the indictment or information has been dismissed or quashed, and the court finds that the indictment was dismissed or quashed . . . because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense, or because the indictment or information was void.

Ok. So it’s not enough to have your felon case dismissed once it’s been indicted, you have to prove some other elements as well, such as mistake, false information, or lack or probable cause. This is why it’s very important to see what the prosecutor puts in their dismissal motion. In Kaufman County we have standard dismissal motions that include a list of reason for the dismissal (including a blank “Other” section). There are reasons on the form such as “in the interest of justice”, “Defendant was convicted in another case”, or “insufficient evidence”. It’s important to note that some of the reasons will not entitle you to an expunction. So even if you get the case dismissed, you still have to prove that there was no probable cause, or false information, in order to get an expunction.

In this case the prosecutor testified that she believed the allegations, even thought the witness confessed to lying, and the judge believed the prosecutor (that is, found the prosecutor to be credible) and didn’t believe the CW (Bothwell’s daughter). So th Dallas Court of Appeals ruled against Bothwell as well.

So remember, just getting a felony case dismissed does not entitle you to an expunction. You may have to prove to a judge that you qualify and have a contested hearing regarding the expunction.