This information is for citizens and is not intended to be any legal advice but to inform citizens of the problems they face when they come in contact with Police who are questioning them about a serious crime .
Any questions about this should be discussed with your lawyer . Due to the ruling in Texas, Salinas v Texas, the law has changed regarding the right to invoke your Fifth Amendment rights under the United States Constitution and the Texas Constitution by remaining silent when questioned by the Police. Just not answering a police officers questions and remaining silent does not protect your right to the Fifth Amendment, you must specifically invoke your right to remain silent.
The advice that an attorney has told you in the past:
“don’t answer any questions if the Police contact you.”
Is not sufficient now to rely upon the Fifth Amendment to protect your right to speak to the Police. Some advice an attorney may tell you in the event of a DWI stop , once the alcohol questions below start may be proper:
“If I am free to leave , I would like to leave?”
If the answer is that you are not free to leave then the following would be a good answer:
“I will not answer any questions or take any tests with out my lawyer present”.
You should then remain silent to any questioning and if you say anything insist on having your lawyer present. You have the right to refuse the road side tests. As to the request to take the breath test it is best just to say : “I would like to consult with my lawyer and I will do what he says”. Although this will be taken by the officer as a refusal a jury may think this is a proper request .
Many counties in Texas have started pretrial diversion programs for first time DWI’s. Fort Bend and Harris County have these such programs. We practice in both of these and other surrounding counties and have reviewed these programs. Fort Bend County has a program that is newer and came in with the new District Attorney.
Both programs offer the ability to have your DWI dismissed and the records expunged if you successfully qualify and complete the program. There are restrictions that are similar to both programs. There was also a change in the law dealing with the expunction of DWI convictions and other convictions in the past under certain circumstances. We will have an article on that later.
There can not have been an accident, even a single car accident. In Fort Bend County if there is an accident involved then you can possibly qualify for the DWI court but will not be able to get into the DA PT program.
If there was a breath test or blood test there is a limit on how high it can be to qualify for the DA PT program. Harris County has a threshold of .15, anything over that does not automatically qualify for the program. If it is over that amount you may still apply but will be a case by case basis and requirers some other special circumstance. Fort Bend County has its limit set at .12 but again you may still apply and it can be reviewed to see if possible to accept. It would again take some special circumstance especially since there is the DWI court which also offers dismissal for first offense in most cases.
Both programs are also limited by not having any alcohol related priors. Even if your alcohol related prior was not a conviction it will still probably preclude you from eligibility.
It never hurts to ask for these programs even if not automatically qualified.
The important thing to remember based on these requirements is that you are better off not taking the breath or blood test so you do not risk being over the threshold limit. The ability to get into one of these programs is huge and you might disqualify yourself if you take the test. This would mean someone who is actually over the alcohol level you are at might get the benefit of the program just by refusing the test.
You are also better off not taking the test because if you are .15 or higher you 1st time DWI would be a Class A misdemeanor and you would have a mandatory interlock on your vehicle as a condition of bond. The state administrative fee’s would also be higher if you are convicted.
Always be polite and cooperative, but remember you are not required to do any of the road sided tests, including the eye test (HGN), walk and turn, one leg stand or any other test they may ask you to perform. However if you refuse all roadside tests this could affect your ability to get into the program in some counties. This includes normal things like saying your ABC’s or touching your fingers to you thumb in a pattern. You are also not required to submit to a breath or blood test, your license may be suspended if you refuse just as it may if you blow over .08. You must seek an attorney immediately if you get arrested. You must have a request filed with in 15 days of the arrest to challenge the suspension. Even if your court date is not for weeks or even months you have time periods that run immediately.
Over the past few years, the state of Texas has been buckling down on drunk driving. Many of the DWIs during the year are recorded around the holidays, especially the fourth of July, Christmas and New Years Eve. Not everyone arrested for DWI is intoxicated, to help those out who are not intoxicated and those who are, we at Foster Law Firm are dedicated to handle DWI cases for all of our clients. Don’t get unfairly lumped into the statistics. Just because you had something to drink and drove a car does not mean that you have broken the law. The law is that you can not be intoxicated and operate a motor vehicle in a public place. You, by law can drink and drive so long as you are not intoxicated. This means that you have a blood alcohol concentration of .08 or higher or you have lost the normal use of your mental and physical faculties due to the introduction of alcohol, drugs or a combination thereof. Continue reading
By: Logene Foster, Lynn Foster and Lonnie Foster
Everyone in Texas who has attained the age of eighteen or who is or has been lawfully married, or who is a member of the armed forces of the United States or of the auxiliaries thereof or of the maritime service at the time the will is made, being of sound mind should consider a Will regardless of age.
By: Logene Foster
Parents, students in high school and college should be aware of the law on Minor in Possession of Alcohol as it carries some serious consequences. Minor in Possession of Alcohol is being illegally in possession, ownership or control of an alcoholic beverage. This involves “constructive possession” Constructive possession may exist:
- A minor sits at a table with several people who are drinking from a pitcher of beer.
- A minor gathers empty beer cans and cups to discard.
- A minor holds a friends beer as the friend puts on his jacket.
- A minor uses a beer can as a spittoon for tobacco juice.
This law covers all individuals under 21 years of age. It further provides for a fine of not more than $500.00, community service for not less than 20 hours or more than 40 hours. In addition if convicted can be a suspension of drivers license for 30 days. If the minor has 2 or more prior convictions for this same offense then the punishment is a fine of not less than $250.00 or more than $2000.00 and/or confinement in jail not to exceed 6 months. If there is one prior conviction community service is not less than 20 hours or more than 40 hours. The suspension of drivers license is for 60 days if one prior conviction or if 2 prior convictions the Drivers License suspension can be for 6 months. A conviction or even a charge for MIP can cause a student to loose a scholarship he already has or cause a scholarship offer to be withdrawn. A student can also lose the ability to play a sport even if they have been previously offered a spot on the team. Grant money could possibly be taken away from a student who is convicted of MIP.
In Texas it seems to be very complicated as to what happens to a child when they turn 17. In the eyes of the criminal courts they are treated as an adult and prosecuted as an adult. In the Family court they are still under the courts control as a child until they turn 18. The big problem comes when a child turns 17 and leaves on parents house, against that parents will, and goes to live with the other parent or some other adult, maybe even an adult boyfriend or girlfriend. The police typically will not get involved and will tell you it is a civil matter. I have although experienced that some agencies will actually go to the house where the 17 year old is and threaten to take them to juvenile detention if they do not go back. I have not seen too many District Attorney’s here in the Sugar Land, Fort Bend County Texas area excited to file a runaway charge on a 17 year old. When they go to the other parents house it creates two problems. The first problem is dealing with the police and the issue of possibly harboring a runaway. I think it is very difficult argument to make that you should turn your own child out in the street. The second problem is the possible ramifications in the family court. The court order, if one is in place, still controlls till the child turn 18. The court can summons the child to court to talk to them, and I suppose even charge them with contempt of court if they refuse to follow the court order. The parent could be held in contempt if they are encouraging the child to come and stay. I think the parents job is to encourage the child to go back to the other parent and make the child available to the other parent to allow them to convice the child to come back. This is all in theory and with a 17 year old it is nearly impossible to get them back if they are set on not going back and are not willing to follow the parents instructions, which is an issue for a whole other blog. When the child goes to stay with some other adult, such as a friends parent or with an adult boyfriend that is where the adult could be setting themselves up for possible criminal penalties. I have not had any cases where the police or the district attorney’s office have actually pursued an adult who offered shelter to a 17 year old. The best thing the adult can do is make the child available to the police or the parent to attempt to get them to go back. If they try to hide them or refuse access then that tends to get the authorities wanting to flex some power. Let me know what you think or what your experiences have been from the parent side, the child side, the adult who takes one in, the police side or attorney’s who have had experience with it.
The issue of free speech has now come to the younger generation not through a protest but through their facebook “like” button. The court has come down that it is not speech. However, the issue is probably still far from decided. Facebook says the “like” button is the equivalent of today’s yard sign. This is probably true, as if a young person today wants to support a political candidate or a resturaunt for that matter they will go to the facebook page and “like” it. The question still is whether the language is protected to keep you from being fired. If the employee had been outside going from house to house with signs supporting their employers competition should they have been fired. If this were in Texas, and a private employer, I think the answer would clearly be yes. They can be fired. If you want to support you employers competition, why should you not just go work for them. Why should your employer keep someone who does not believe in them. If this is free speech and should be protected, how does it differ from the comments made from the CEO of Chick-Fil-A who was only expressing his opinion through speech. I think this is an area of the law with many different issues and possible angles. It may be a while before the courts get this sorted out. None the less, we must all be cautioned when participating in social networking sites. Once you post, it becomes very public.
So tell us, do you believe the “Like” button on Facebook falls under Freedom of Speech?
Family law can be a very complicated and emotional issue that affects so many people today. With our office in Sugar Land Texas we handle these cases in Fort Bend County , Harris County, Brazoria County, Waller County and other surrounding counties. There is also lots of misinformation that about the laws in Texas that can make things even more confusing and frustrating for Husband’s and Wives going through divorce. This is why it is important that you consult a Family Law Attorney if you are considering or in the process of Divorce. When there are kids and property issue to be handled it creates so many possible options. We offer a free consultation to prospective clients so that they can get some accurate information as it relates to Divorce in Texas. Whether it is Custody issues or Property Division issues it is important to informed about your rights and what you can expect. Many people get their information from friends who have been through divorce but this information may not be accurate as it pertains to your case. If someone had a divorce that was completely agreed terms then it may be nothing like what a court can and will order. Parties should work to settle their cases as much as possible, especially when kids are involved. Results can also vary from County to County to some extent as each judge has certain things that they think are important and how it should be decided. There are many issues in Family Law which I hope to go in to more detail in future Blogs.
I just wanted to take a moment to say how proud we are of all the Athletes and especially the U.S. Olympic Athletes. It was so great to see the Gold medal moments such as Soccer, Track and Gymnastics but it was also great to see all the athletes compete. Great job by all and you should all be so proud, we are!
We are kicking off our new Blog. I would like to take the opportunity to thank all of our customers we have had over the years. We have been lucky to keep this firm operating for over 44 years because of our loyal clients. I also like to think this is because we have always offered top notch services for a fair fee.
We again thank you and our team is here to help you how ever we can. We still offer free consultations for those with questions.