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Drivers License Suspensions – ALR

When one is arrested for DWI, the police officer should read a document called the “Statutory Warning” letting you know what will happen if you either refuse or fail a breath or blood test.  Courts have determined that this choice belongs to the cop, and that no, you don’t have the right to have an attorney present.  If you fail the breath test, your license will be suspended for 90 days beginning on the 40th day after your arrest.  If you refuse the breath test, your license will likewise be suspended for 180 days beginning on the 40th day after you are served with the Statutory Warning.  The cop will serve you notice of this suspension.  For blood tests, the clock starts running when the results come back months later and you are served with notice.  Once you have been served with notice, you have 15 days to request a hearing.

I always request an ALR hearing because the cop is required to follow strict procedures and sometimes they don’t.  If their violation of procedures is serious enough, the suspension can’t be ordered.  Of course, if you don’t request a hearing in the first place, any violation of procedure will never be presented and the suspension will go through on the 40th day.

Yes, you can usually get an occupational license to keep you driving.  I, and most other criminal defense attorneys, can do this for you.

Dave Howard

512-218-7999

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Weapons Charges

Would it surprise you to know that just about every steak knife you’ve ever used is considered a prohibited weapon in the state of Texas? It would probably surprise you to know the types of objects people can consider weapons.

At the Round Rock, Texas, law office of Dave Howard, Attorney at Law, I defend clients charged with gun and weapons charges. I have been defending citizens charged with criminal offenses since 1993, and have developed a strong reputation for success among judges and prosecutors as well as a proud history of reliable client service among my many former clients.

I will put my years of experience and resources behind your defense.

Defending Texas Weapons Violations

Used in a threatening manner, almost anything can potentially count as a weapon and significantly enhance other criminal charges. In fact, a weapon doesn’t even need to be on your person to lead to an arrest; simply having an unlawful weapon within easy access can potentially lead to a criminal charge.

Among the weapons violations and criminal charges I defend people against, include:

If you have been charged with a weapons violation, whether a misdemeanor or felony charge, then you need a lawyer. An unlawful weapon isn’t just a gun or knife. You can be arrested and prosecuted for the possession or use of daggers, brass knuckles, illegal clubs, even rocks and bludgeoning objects.

Put Experience Behind Your Defense

My office and I are committed to helping citizens in trouble with the law. I believe strongly in the right of every person to have experienced and aggressive defense. I fight for you in and out of the courtroom. I represent clients in Williamson County and throughout Central Texas.

Visit me at www.davehowardlaw.com or by calling 512-218-7999

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A Criminal Defense Attorney’s Advice: Being Searched When You Are a Passenger in Someone Else’s Car

When a car driven by young people is pulled over by the police, the police are anxious to search it and will seek an excuse  or the consent of the driver or owner to do so.  If there is no direct evidence of criminal activity – usually drugs or their smell – The police will pressure the driver for consent to search.  Sometimes the driver is quite willing to allow the search, sometimes not.  The police will threaten to bring a police dog to smell the car in order to pressure the driver to allow them to search.  They will say things like, “You must be hiding something if you won’t let me search.”  Most of the time, young people feel intimidated and allow the officer to search.

Other times, the officer will see a roach or a baggy or pills in plain view or will smell the odor of burnt marijuana.  In these cases, the officers have “probable cause” to search.  They will even say they smell marijuana if none has been smoked in the car ever.  It’s impossible for them to smell this but they will lie any time they feel the need to in order to get what they want.  If they find marijuana, they were right.  If they don’t, the driver leaves and the officer suffers no harm for his illegal search.

Once a search starts, the officer will usually search the car and everything in it, including backpacks and purses belonging to other passengers.  This is the time for other passengers to know the law.

If the officer has probable cause to search, meaning he smelled weed or saw something in plain sight, he can search the car and everything in it no matter who it belongs to.   If he finds something, the owner of the bag he found it in will be arrested.

However, if the officer is relying on the consent of the driver to search, he can only legally search what belongs to the driver, not what belongs to others in the car.  So if a passenger’s purse is in the back seat and the officer finds marijuana in it, the search is illegal and can’t support a conviction for Possession of Marijuana.  The officer must ask permission of each person in the car to search that person’s individual bag.  A defendant will absolutely need an attorney to make this argument for him in court.

This permission must also be gotten to search the clothing or pockets of anyone in the car if there is no probable cause.

It’s things like this that make it important to have an attorney representing you if you are arrested.   I am Dave Howard, Attorney at Law.  You can reach me at www.davehowardlaw.com.

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Possession of Marijuana Statute

Sec. 481.121.  OFFENSE: POSSESSION OF MARIHUANA. (a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.

(b)  An offense under Subsection (a) is:

(1)  a Class B misdemeanor if the amount of marihuana possessed is two ounces or less;

(2)  a Class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;

(3)  a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;

(4)  a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;

(5)  a felony of the second degree if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and

(6)  punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of marihuana possessed is more than 2,000 pounds.

 

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Williamson County Misdemeanor Court Procedure

Misdemeanor Court Procedure

When you are arrested for a misdemeanor in Williamson County, you might be taken to the local police department (e.g. Round Rock, Cedar Park, Leander) but you will usually be taken to the Williamson County Jail in Georgetown.  Once there, you will need to sit until you can see a magistrate.  Magistration is the procedure where a judge tells you what your rights are, including the rights to remain silent and not give a statement to the police and the right to have an attorney appointed if you are indigent.  The magistrate will also set a bond for you.  Misdemeanor bonds range from about $500 to $3000, in general.  Since the magistrates in Williamson County only come in once a day in the morning, if you are arrested after about 10:00 am, you will have to spend the night in jail.

If you have been arrested on an outstanding warrant, the bond will already be set and you only need to be magistrated.  If you have an attorney, he or she can have you sign a waiver of magistration.  In this document, you are not waiving your rights, just the necessity of having the magistrate read them to you.  Most of the time, if you know you have a warrant outstanding, you should hire an attorney and a bondsman and arrange a “walk-through” where you are booked into jail and immediately back out again, as the bond and waiver of magistration are presented with you at the time of your surrender.  However, if you are charged with family violence, the courts no longer allow you to waive magistration and you must sit until you see him.

Upon your release, you will be given a document telling you when to come to court.  There are three misdmeanor courts in Williamson County: County Courts at Law One, Two and Three.  These courts’ “First Appearance” dockets are usually on Wednesday or Friday.  The purpose of this court hearing is to determine if you are going to plead guilty without an attorney, or if you wish to plead not guilty and either hire an attorney or attempt to represent yourself in a contested case.  Should you plead guilty without an attorney, you will be allowed to speak with a prosecutor who will tell you what your punishment will be.  This is not a trial and you are not going to be able to tell the prosecutor that you are not really guilty.  You are simply telling him or her that you ARE guilty and that you will accept whatever punishment they think is appropriate.  Whatever legal or factual defenses that you may have or think you have may not be raised here.

BE VERY CAREFUL ABOUT PLEADING GUILTY AND EXPECTING TO BE ABLE TO CHANGE YOUR MIND IF THE PLEA OFFER IS TOO HARSH OR THE JUDGE INCREASES THE PUNISHMENT.  In misdemeanor cases, the judge is not required to let you withdraw your plea and is not legally bound to follow any plea agreement.  Most judges will either follow a plea bargain or allow you to withdraw your plea, but not all of them.

At First Appearance, if you tell the judge that you wish to plead not guilty or wish to speak to an attorney, he or she will reset your case to give you time to do so.  If you show up at the next hearing without having made an attempt to hire an attorney, the judge may be peeved at you, so make the attempt at least.  If you want me to tell you why you need a lawyer, go to my page “Why You Need A Lawyer” and read all about it.  If you have retained an attorney prior to First Appearance, the attorney can call the court and reschedule your case without your appearance.

The next setting is called Announcement.  At Announcement, your attorney is required to “announce” to the court what is going to happen to the case.  Is it going to trial?  Will there be a plea bargain?  Is the case to be dismissed?  Will there be some kind of special hearing?  Your attorney may either make his announcement to the court prior to the Announcement date, or you and he may attend together.  Usually, you are required to attend.

I’m not going to go into all of the trial or special hearing scenarios.  That would take a book.  If you have gotten to this point, your attorney will explain what comes next.

(This message is for informational purposes only and is not intended as legal advice.  Each case is different and you should talk to an attorney of your choosing.)

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Texas Assault Statute

PENAL CODE

TITLE 5. OFFENSES AGAINST THE PERSON

CHAPTER 22. ASSAULTIVE OFFENSES

Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
(1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;
(2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if:
(A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or
(B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth;
(3) a person who contracts with government to perform a service in a facility as defined by Section 1.07(a)(14), Penal Code, or Section 51.02(13) or (14), Family Code, or an employee of that person:
(A) while the person or employee is engaged in performing a service within the scope of the contract, if the actor knows the person or employee is authorized by government to provide the service; or
(B) in retaliation for or on account of the person’s or employee’s performance of a service within the scope of the contract;
(4) a person the actor knows is a security officer while the officer is performing a duty as a security officer; or
(5) a person the actor knows is emergency services personnel while the person is providing emergency services.
(b-1) Notwithstanding Subsection (b)(2), an offense under Subsection (a)(1) is a felony of the second degree if:
(1) the offense is committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code;
(2) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, or 21.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; and
(3) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.
(c) An offense under Subsection (a)(2) or (3) is a Class C misdemeanor, except that the offense is:
(1) a Class A misdemeanor if the offense is committed under Subsection (a)(3) against an elderly individual or disabled individual, as those terms are defined by Section 22.04; or
(2) a Class B misdemeanor if the offense is committed by a person who is not a sports participant against a person the actor knows is a sports participant either:
(A) while the participant is performing duties or responsibilities in the participant’s capacity as a sports participant; or
(B) in retaliation for or on account of the participant’s performance of a duty or responsibility within the participant’s capacity as a sports participant.
(d) For purposes of Subsection (b), the actor is presumed to have known the person assaulted was a public servant, a security officer, or emergency services personnel if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant or status as a security officer or emergency services personnel.
(e) In this section:
(1) “Emergency services personnel” includes firefighters, emergency medical services personnel as defined by Section 773.003, Health and Safety Code, and other individuals who, in the course and scope of employment or as a volunteer, provide services for the benefit of the general public during emergency situations.
(2) Expired.
(3) “Security officer” means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.
(4) “Sports participant” means a person who participates in any official capacity with respect to an interscholastic, intercollegiate, or other organized amateur or professional athletic competition and includes an athlete, referee, umpire, linesman, coach, instructor, administrator, or staff member.
(f) For the purposes of Subsections (b)(2)(A) and (b-1)(2):
(1) a defendant has been previously convicted of an offense listed in those subsections committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and
(2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed in those subsections is a conviction of the offense listed.
(g) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or both sections.
Sec. 22.011. SEXUAL ASSAULT. (a) A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;
(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or
(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or
(2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any means;
(B) causes the penetration of the mouth of a child by the sexual organ of the actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.
(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of physical force or violence;
(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;
(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
(6) the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge;
(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
(8) the actor is a public servant who coerces the other person to submit or participate;
(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor;
(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser; or
(11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code.
(c) In this section:
(1) “Child” means a person younger than 17 years of age.
(2) “Spouse” means a person who is legally married to another.
(3) “Health care services provider” means:
(A) a physician licensed under Subtitle B, Title 3, Occupations Code;
(B) a chiropractor licensed under Chapter 201, Occupations Code;
(C) a physical therapist licensed under Chapter 453, Occupations Code;
(D) a physician assistant licensed under Chapter 204, Occupations Code; or
(E) a registered nurse, a vocational nurse, or an advanced practice nurse licensed under Chapter 301, Occupations Code.
(4) “Mental health services provider” means an individual, licensed or unlicensed, who performs or purports to perform mental health services, including a:
(A) licensed social worker as defined by Section 505.002, Occupations Code;
(B) chemical dependency counselor as defined by Section 504.001, Occupations Code;
(C) licensed professional counselor as defined by Section 503.002, Occupations Code;
(D) licensed marriage and family therapist as defined by Section 502.002, Occupations Code;
(E) member of the clergy;
(F) psychologist offering psychological services as defined by Section 501.003, Occupations Code; or
(G) special officer for mental health assignment certified under Section 1701.404, Occupations Code.
(5) “Employee of a facility” means a person who is an employee of a facility defined by Section 250.001, Health and Safety Code, or any other person who provides services for a facility for compensation, including a contract laborer.
(d) It is a defense to prosecution under Subsection (a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.
(e) It is an affirmative defense to prosecution under Subsection (a)(2):
(1) that the actor was the spouse of the child at the time of the offense; or
(2) that:
(A) the actor was not more than three years older than the victim and at the time of the offense:
(i) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
(ii) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and
(B) the victim:
(i) was a child of 14 years of age or older; and
(ii) was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.
(f) An offense under this section is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.
Sec. 22.02. AGGRAVATED ASSAULT. (a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person:
(1) causes serious bodily injury to another, including the person’s spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if:
(1) the actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code;
(2) regardless of whether the offense is committed under Subsection (a)(1) or (a)(2), the offense is committed:
(A) by a public servant acting under color of the servant’s office or employment;
(B) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;
(C) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime; or
(D) against a person the actor knows is a security officer while the officer is performing a duty as a security officer; or
(3) the actor is in a motor vehicle, as defined by Section 501.002, Transportation Code, and:
(A) knowingly discharges a firearm at or in the direction of a habitation, building, or vehicle;
(B) is reckless as to whether the habitation, building, or vehicle is occupied; and
(C) in discharging the firearm, causes serious bodily injury to any person.
(4) Expired.
(c) The actor is presumed to have known the person assaulted was a public servant or a security officer if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant or status as a security officer.
(d) In this section, “security officer” means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.

Sec. 22.021. AGGRAVATED SEXUAL ASSAULT. (a) A person commits an offense:
(1) if the person:
(A) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;
(ii) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or
(iii) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or
(B) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of a child by any means;
(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;
(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor; and
(2) if:
(A) the person:
(i) causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode;
(ii) by acts or words places the victim in fear that any person will become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or that death, serious bodily injury, or kidnapping will be imminently inflicted on any person;
(iii) by acts or words occurring in the presence of the victim threatens to cause any person to become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or to cause the death, serious bodily injury, or kidnapping of any person;
(iv) uses or exhibits a deadly weapon in the course of the same criminal episode;
(v) acts in concert with another who engages in conduct described by Subdivision (1) directed toward the same victim and occurring during the course of the same criminal episode; or
(vi) 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;
(B) the victim is younger than 14 years of age; or
(C) the victim is an elderly individual or a disabled individual.
(b) In this section:
(1) “Child” has the meaning assigned by Section 22.011(c).
(2) “”Elderly individual” and “disabled individual” have the meanings assigned by Section 22.04(c).
(c) An aggravated sexual assault under this section is without the consent of the other person if the aggravated sexual assault occurs under the same circumstances listed in Section 22.011(b).
(d) The defense provided by Section 22.011(d) applies to this section.
(e) An offense under this section is a felony of the first degree.
(f) The minimum term of imprisonment for an offense under this section is increased to 25 years if:
(1) the victim of the offense is younger than six years of age at the time the offense is committed; or
(2) the victim of the offense is younger than 14 years of age at the time the offense is committed and the actor commits the offense in a manner described by Subsection (a)(2)(A).

Sec. 22.04. INJURY TO A CHILD, ELDERLY INDIVIDUAL, OR DISABLED INDIVIDUAL. (a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.
(a-1) A person commits an offense if the person is an owner, operator, or employee of a group home, nursing facility, assisted living facility, intermediate care facility for persons with mental retardation, or other institutional care facility and the person intentionally, knowingly, recklessly, or with criminal negligence by omission causes to a child, elderly individual, or disabled individual who is a resident of that group home or facility:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.
(b) An omission that causes a condition described by Subsection (a)(1), (2), or (3) or (a-1)(1), (2), or (3) is conduct constituting an offense under this section if:
(1) the actor has a legal or statutory duty to act; or
(2) the actor has assumed care, custody, or control of a child, elderly individual, or disabled individual.
(c) In this section:
(1) “Child” means a person 14 years of age or younger.
(2) “Elderly individual” means a person 65 years of age or older.
(3) “Disabled individual” means a person older than 14 years of age who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect himself from harm or to provide food, shelter, or medical care for himself.
(4) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 620, Sec. 11, eff. September 1, 2011.
(d) For purposes of an omission that causes a condition described by Subsection (a)(1), (2), or (3), the actor has assumed care, custody, or control if he has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care for a child, elderly individual, or disabled individual. For purposes of an omission that causes a condition described by Subsection (a-1)(1), (2), or (3), the actor acting during the actor’s capacity as owner, operator, or employee of a group home or facility described by Subsection (a-1) is considered to have accepted responsibility for protection, food, shelter, and medical care for the child, elderly individual, or disabled individual who is a resident of the group home or facility.
(e) An offense under Subsection (a)(1) or (2) or (a-1)(1) or (2) is a felony of the first degree when the conduct is committed intentionally or knowingly. When the conduct is engaged in recklessly, the offense is a felony of the second degree.
(f) An offense under Subsection (a)(3) or (a-1)(3) is a felony of the third degree when the conduct is committed intentionally or knowingly, except that an offense under Subsection (a)(3) is a felony of the second degree when the conduct is committed intentionally or knowingly and the victim is a disabled individual residing in a center, as defined by Section 555.001, Health and Safety Code, or in a facility licensed under Chapter 252, Health and Safety Code, and the actor is an employee of the center or facility whose employment involved providing direct care for the victim. When the conduct is engaged in recklessly, the offense is a state jail felony.
(g) An offense under Subsection (a) is a state jail felony when the person acts with criminal negligence. An offense under Subsection (a-1) is a state jail felony when the person, with criminal negligence and by omission, causes a condition described by Subsection (a-1)(1), (2), or (3).
(h) A person who is subject to prosecution under both this section and another section of this code may be prosecuted under either or both sections. Section 3.04 does not apply to criminal episodes prosecuted under both this section and another section of this code. If a criminal episode is prosecuted under both this section and another section of this code and sentences are assessed for convictions under both sections, the sentences shall run concurrently.
(i) It is an affirmative defense to prosecution under Subsection (b)(2) that before the offense the actor:
(1) notified in person the child, elderly individual, or disabled individual that he would no longer provide any of the care described by Subsection (d); and
(2) notified in writing the parents or person other than himself acting in loco parentis to the child, elderly individual, or disabled individual that he would no longer provide any of the care described by Subsection (d); or
(3) notified in writing the Department of Protective and Regulatory Services that he would no longer provide any of the care set forth in Subsection (d).
(j) Written notification under Subsection (i)(2) or (i)(3) is not effective unless it contains the name and address of the actor, the name and address of the child, elderly individual, or disabled individual, the type of care provided by the actor, and the date the care was discontinued.
(k) It is a defense to prosecution under this section that the act or omission consisted of:
(1) reasonable medical care occurring under the direction of or by a licensed physician; or
(2) emergency medical care administered in good faith and with reasonable care by a person not licensed in the healing arts.
(l) It is an affirmative defense to prosecution under this section:
(1) that the act or omission was based on treatment in accordance with the tenets and practices of a recognized religious method of healing with a generally accepted record of efficacy;
(2) for a person charged with an act of omission causing to a child, elderly individual, or disabled individual a condition described by Subsection (a)(1), (2), or (3) that:
(A) there is no evidence that, on the date prior to the offense charged, the defendant was aware of an incident of injury to the child, elderly individual, or disabled individual and failed to report the incident; and
(B) the person:
(i) was a victim of family violence, as that term is defined by Section 71.004, Family Code, committed by a person who is also charged with an offense against the child, elderly individual, or disabled individual under this section or any other section of this title;
(ii) did not cause a condition described by Subsection (a)(1), (2), or (3); and
(iii) did not reasonably believe at the time of the omission that an effort to prevent the person also charged with an offense against the child, elderly individual, or disabled individual from committing the offense would have an effect; or
(3) that:
(A) the actor was not more than three years older than the victim at the time of the offense; and
(B) the victim was a child at the time of the offense.
Sec. 22.041. ABANDONING OR ENDANGERING CHILD. (a) In this section, “abandon” means to leave a child in any place without providing reasonable and necessary care for the child, under circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability.
(b) A person commits an offense if, having custody, care, or control of a child younger than 15 years, he intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm.
(c) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.
(c-1) For purposes of Subsection (c), it is presumed that a person engaged in conduct that places a child in imminent danger of death, bodily injury, or physical or mental impairment if:
(1) the person manufactured, possessed, or in any way introduced into the body of any person the controlled substance methamphetamine in the presence of the child;
(2) the person’s conduct related to the proximity or accessibility of the controlled substance methamphetamine to the child and an analysis of a specimen of the child’s blood, urine, or other bodily substance indicates the presence of methamphetamine in the child’s body; or
(3) the person injected, ingested, inhaled, or otherwise introduced a controlled substance listed in Penalty Group 1, Section 481.102, Health and Safety Code, into the human body when the person was not in lawful possession of the substance as defined by Section 481.002(24) of that code.
(d) Except as provided by Subsection (e), an offense under Subsection (b) is:
(1) a state jail felony if the actor abandoned the child with intent to return for the child; or
(2) a felony of the third degree if the actor abandoned the child without intent to return for the child.
(e) An offense under Subsection (b) is a felony of the second degree if the actor abandons the child under circumstances that a reasonable person would believe would place the child in imminent danger of death, bodily injury, or physical or mental impairment.
(f) An offense under Subsection (c) is a state jail felony.
(g) It is a defense to prosecution under Subsection (c) that the act or omission enables the child to practice for or participate in an organized athletic event and that appropriate safety equipment and procedures are employed in the event.
(h) It is an exception to the application of this section that the actor voluntarily delivered the child to a designated emergency infant care provider under Section 262.302, Family Code.

Sec. 22.05. DEADLY CONDUCT. (a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.
(b) A person commits an offense if he knowingly discharges a firearm at or in the direction of:
(1) one or more individuals; or
(2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.
(c) Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.
(d) For purposes of this section, “building,” “habitation,” and “vehicle” have the meanings assigned those terms by Section 30.01.
(e) An offense under Subsection (a) is a Class A misdemeanor. An offense under Subsection (b) is a felony of the third degree.

Sec. 22.06. CONSENT AS DEFENSE TO ASSAULTIVE CONDUCT. (a) The victim’s effective consent or the actor’s reasonable belief that the victim consented to the actor’s conduct is a defense to prosecution under Section 22.01 (Assault), 22.02 (Aggravated Assault), or 22.05 (Deadly Conduct) if:
(1) the conduct did not threaten or inflict serious bodily injury; or
(2) the victim knew the conduct was a risk of:
(A) his occupation;
(B) recognized medical treatment; or
(C) a scientific experiment conducted by recognized methods.
(b) The defense to prosecution provided by Subsection (a) is not available to a defendant who commits an offense described by Subsection (a) as a condition of the defendant’s or the victim’s initiation or continued membership in a criminal street gang, as defined by Section 71.01.

Sec. 22.07. TERRORISTIC THREAT. (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:
(1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies;
(2) place any person in fear of imminent serious bodily injury;
(3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place;
(4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service;
(5) place the public or a substantial group of the public in fear of serious bodily injury; or
(6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.
(b) An offense under Subsection (a)(1) is a Class B misdemeanor.
(c) An offense under Subsection (a)(2) is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the offense:
(1) is committed against a member of the person’s family or household or otherwise constitutes family violence; or
(2) is committed against a public servant.
(d) An offense under Subsection (a)(3) is a Class A misdemeanor, unless the actor causes pecuniary loss of $1,500 or more to the owner of the building, room, place, or conveyance, in which event the offense is a state jail felony.
(e) An offense under Subsection (a)(4), (a)(5), or (a)(6) is a felony of the third degree.
(f) In this section:
(1) “Family” has the meaning assigned by Section 71.003, Family Code.
(2) “Family violence” has the meaning assigned by Section 71.004, Family Code.
(3) “Household” has the meaning assigned by Section 71.005, Family Code.
(g) For purposes of Subsection (d), the amount of pecuniary loss is the amount of economic loss suffered by the owner of the building, room, place, or conveyance as a result of the prevention or interruption of the occupation or use of the building, room, place, or conveyance.

Sec. 22.08. AIDING SUICIDE. (a) A person commits an offense if, with intent to promote or assist the commission of suicide by another, he aids or attempts to aid the other to commit or attempt to commit suicide.
(b) An offense under this section is a Class C misdemeanor unless the actor’s conduct causes suicide or attempted suicide that results in serious bodily injury, in which event the offense is a state jail felony.

Sec. 22.09. TAMPERING WITH CONSUMER PRODUCT. (a) In this section:
(1) “Consumer Product” means any product offered for sale to or for consumption by the public and includes “food” and “drugs” as those terms are defined in Section 431.002, Health and Safety Code.
(2) “Tamper” means to alter or add a foreign substance to a consumer product to make it probable that the consumer product will cause serious bodily injury.
(b) A person commits an offense if he knowingly or intentionally tampers with a consumer product knowing that the consumer product will be offered for sale to the public or as a gift to another.
(c) A person commits an offense if he knowingly or intentionally threatens to tamper with a consumer product with the intent to cause fear, to affect the sale of the consumer product, or to cause bodily injury to any person.
(d) An offense under Subsection (b) is a felony of the second degree unless a person suffers serious bodily injury, in which event it is a felony of the first degree. An offense under Subsection (c) is a felony of the third degree.

Sec. 22.10. LEAVING A CHILD IN A VEHICLE. (a) A person commits an offense if he intentionally or knowingly leaves a child in a motor vehicle for longer than five minutes, knowing that the child is:
(1) younger than seven years of age; and
(2) not attended by an individual in the vehicle who is 14 years of age or older.
(b) An offense under this section is a Class C misdemeanor.

Sec. 22.11. HARASSMENT BY PERSONS IN CERTAIN CORRECTIONAL FACILITIES; HARASSMENT OF PUBLIC SERVANT. (a) A person commits an offense if, with the intent to assault, harass, or alarm, the person:
(1) while imprisoned or confined in a correctional or detention facility, causes another person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal; or
(2) causes another person the actor knows to be a public servant to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal while the public servant is lawfully discharging an official duty or in retaliation or on account of an exercise of the public servant’s official power or performance of an official duty.
(b) An offense under this section is a felony of the third degree.
(c) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section.
(d) In this section, “correctional or detention facility” means:
(1) a secure correctional facility; or
(2) a “secure correctional facility” or a “secure detention facility” as defined by Section 51.02, Family Code, operated by or under contract with a juvenile board or the Texas Youth Commission or any other facility operated by or under contract with that commission.
(e) For purposes of Subsection (a)(2), the actor is presumed to have known the person was a public servant if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant.

Sec. 22.12. APPLICABILITY TO CERTAIN CONDUCT. This chapter does not apply to conduct charged as having been committed against an individual who is an unborn child if the conduct is:
(1) committed by the mother of the unborn child;
(2) a lawful medical procedure performed by a physician or other health care provider with the requisite consent;
(3) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent as part of an assisted reproduction as defined by Section 160.102, Family Code; or
(4) the dispensation of a drug in accordance with law or administration of a drug prescribed in accordance with law.

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Mandatory Blood Draws and the US Supreme Court

Missouri v. McNeely: Analysis of the Supreme Court’s Latest Opinion on Blood Draws in DWI Cases
Written on April 21, 2013 by John in Criminal Defense, Criminal Law, DWI DUI
This week, on April 17, 2013, the Supreme Court of the United States handed down its judgment in Missouri v. Mcneely, a case where the court was asked to decide whether the mere fact that the human body metabolizes alcohol at a steady rate provided enough of an emergency or exigency to allow police officers to draw the blood of a person they have arrested for DWI without first getting a warrant. The Court had to decide whether this type of warrantless blood draw violated the 4th Amendment protection against unreasonable searches and seizures.

The Court issued an interesting opinion that sets forth some serious challenges to the way driving while intoxicated cases are investigated and prosecuted in Texas. As an experienced DWI Defense Attorney, I can tell you that a blood test is a significant piece of evidence that the State would very much like to have in every case. Prosecutors and police officers will go to great lengths to get it. In this opinion the court sets out important limitations on their ability to do so. In this post I will analyze those limitations and the impact it has on Texas law going forward.

First, the opinion was fractured. The opinion of the court (the part that garnered the necessary 5 of 9 justices agreeing) was written by Justice Sotomayor and joined by Scalia, Kennedy, Ginsburg, and Kagan. Justice Kennedy departed from two portions of the opinion written by Sotomayor and wrote his own concurring opinion to express that while he agreed with Sotomayor, he felt the need to make an important distinction and allow for further guidance in the future. Chief Justice Roberts, along with Breyer and Alito, filed an opinion concurring in part and dissenting in part, meaning that these three Justices agreed with some of the court’s opinion but felt the court did not go far enough. Justice Thomas wrote the lone complete dissent, disagreeing with the rest of the Court. The differences between the Court’s opinion, the dissent, and the opinions written by Kennedy and Roberts are vital to understanding how deeply this case will likely impact blood draws in driving while intoxicated cases and more specifically the mandatory blood draw statutes in Texas.

Writing for the Court Sotomayor started with the general rule that the 4th Amendment requires a warrant to obtain evidence without consent and that warrantless searches of a person are reasonable under the 4th Amendment, and the evidence gained therefrom admissible, only if they fall within a recognized exception. In this case the State argued that the metabolization of blood in the body of a person arrested for DWI falls within the exigency exception. This exception recognizes that where destruction of evidence is occurring or about to occur, the police can intervene to search and secure the evidence without a warrant. Courts have found exigency in a wide variety of criminal cases–in drug cases where the police are seeking to secure a house and the people inside start flushing or otherwise destroying the drugs, when police enter a burning building to help put out the fire or investigate the cause of the fire, when a suspect flees into a house and the police are in hot pursuit.

However, in this case the Court held that destruction of alcohol evidence in the blood was not enough, by itself, to allow police to bypass the requirement to get a warrant before obtaining the blood of a DWI suspect who refuses to take a breath or blood test. The court noted that it did allow a warrantless drawing of blood in a DWI case in a previous opinion, Schmerber, but noted that the specific facts in Schmerber (accused injured and taken to the hospital and no time to obtain a warrant before alcohol was likely to completely dissipate) created a situation where a warrantless blood draw was permissible. The Court then stated this is the test, courts must look to the Totality of the Circumstances and decide in each and every case whether or not there is sufficient fact, these being specific facts articulated by the police seeking the blood, to justify the exigency of the circumstances in that particular case.

The Court here strikes down any per se or bright-line rule and says that whether or not a warrantless blood draw is permissible in a particular DWI case comes down to the facts and circumstances of that case and the decision must always be made on a case by case basis.

This is the important distinction between Sotomayor’s opinion, writing for the majority of the court and the legally binding opinion, and the opinions of Justice Kennedy and Chief Justice Roberts. Kennedy wrote separately to say that while he agreed with most of Sotomayor’s opinion that the Totality of the Circumstances is important, States and other government entities should still be able to adopt rules and procedures to meet the reasonable test of the Fourth Amendment and hoped for a future case where the Court could and would give States more guidance.

Kennedy certainly has a point that the Court’s opinion gives precious little guidance to police officers on when they may do a warrantless blood draw, though I believe this is on purpose. While Kennedy has concerns about guiding police officers, the Court does not. The Court starts its opinion by noting that the general rule under the Fourth Amendment is to get a warrant. This is not an accident. The Court is saying that it should NOT be overly easy or routine for police to avoid the warrant requirement. Instead the court is saying that only when the particular facts of a particular case create a true exigent circumstance, something the trial court will later revisit in a motion to suppress hearing.

Chief Justice Roberts appears to miss or disagree with this point in the opinion he writes. Roberts agrees with Kennedy in seeking a more straightforward bright line rule for police and prosecutors to follow, but goes a step further and proposes one. Roberts rule? If there is time to secure a warrant before blood can be drawn they must do so, but if the officer is reasonable in concluding there is not time or he applies for one but doesn’t receive a response in time, he may make a warrantless draw.

While this seems simple and elegant at first it is rife with problems. First, it takes the important case by case approach of the majority opinion and distills it into a simple one-size fits all question, exactly the kind of thing the majority opinion of the court seeks to avoid, and does so by creating the worst kind of incentive. If Roberts had his way and this was the law the police and county officials would have every incentive to reduce all the mechanisms they have to secure a warrant after hours. Why have a magistrate be woken up or prosecutors on call or a fully electronic time-saving warrant system? Then you’ll just have to use it and get warrants for blood. Why not instead make the officer come to the prosecutor and find a judge during business hours? Then the police could still get warrants for other evidence without being required to get a warrant for blood in most DWI cases since most driving while intoxicated arrests occur after normal county business hours. Further, if the only issue is the time to get a warrant, then, as Justice Sotomayor points out, police may well just stop a suspect near a hospital or place where blood can quickly be drawn and then argue that there was no practical time to get a warrant before further dissipation of blood or before the blood draw could be done since they are right there. These types of odd incentives come about when one focuses on only one of many factors that affect when the Fourth Amendment demands a warrant and when it does not.

Thus Sotomayor’s opinion is now the law of our land. It will be up to future court decisions to determine exactly how the totality of the circumstances test plays out but I can already see one important outcome of this case. Texas Transportation Code section 724.012 sets forth different circumstances in which a police officer in Texas may draw the blood of a person arrested for DWI or other intoxication related charges without consent and without a warrant.

This opinion clearly invalidates this statute, making clear that this Texas law is unconstitutional. 724.012 sets forth that when the facts of the case meet the definition of one of the various felony DWI related offenses a police officer may make a warrantless blood draw.

When the Supreme Court has clearly rejected any such bright-line rule, as made clear in the majority opinion and in the lack of sufficient votes for both Roberts’ and Kennedy’s opinions, then 724.012’s bright-line rule must also fall.

Police can no longer make a warrantless blood draw simply because someone was injured in a DWI related accident or because the person has two or more prior DWI convictions or because there was a child in the car. Instead the analysis must turn on whether or not there are specific facts the police officer can articulate that make clear there was not a sufficient time and ability to get a warrant in that particular case.

What does this mean for law practice generally? It means that any time the State chooses to draw blood of an unwilling person without a warrant, they and the police officers involved will have to answer for it and explain it to a judge in court. Why? Because any experienced DWI Defense Attorney worth his or her salt will file a Motion to Suppress the blood result and seek to have the judge exclude that result as gained through unconstitutional means.

In practice, I expect to see more and more counties in Texas seek warrants more and more often in DWI cases. Those that can will certainly try to set up expedited processes for getting warrants in as many cases as possible to avoid the suppression hearings sure to follow.

It will be an interesting time as the law of DWI continues to develop. Certainly, it will become necessary for those accused of driving while intoxicated or any related crime to seek out the advice and counsel of a skilled and knowledgeable DWI Defense Lawyer to help them assert each and every one of their rights.

 

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Possession of Marijuana

Cops love to arrest people for Possession of Marijuana.  Pot smokers tend to be peace-loving and cooperative.  They also tend to be younger and more easily fooled and intimidated.  For cops it’s like shooting fish in a barrel.  I’ve often said that I’m happy to have grown up when I did before the police became so aggressive about searching anyone who looks under the age of 25.

You can avoid problems, or at least minimize the damage the police cause, if you remember some rules.

1. Don’t carry weed around with you.  Don’t let anyone bring weed into your car.  Don’t smoke weed while you’re driving.

2. If you are pulled over and a cop asks to search your car, say no.  Just no.  The cop will try to intimidate you with questions like, “What are you trying to hide?”  Tell them “nothing”.   Tell them that you have things to attend to and don’t have time to watch them go through your car.  Say that there is nothing of interest to the police in your car and so there is nothing to search for.  That you feel it is important to preserve your right to privacy.  That your parents always told you to say no to any request to search.  Say these things respectfully but firmly.  By consenting to a search, you agree that anything the cops find can be used against you.  I’ve had many clients say that they didn’t remember that joint in their center console or on the floorboard.  It’s your car and you are responsible for what’s in it.  If they search your car without permission they are setting things up for the case to be dismissed.

3. If the cops sees pot in plain site or smells the odor, they can legally search without your permission.  Again, refer to #1 and don’t keep pot in your car.

4. The cops have the right to pat you down for possible weapons, usually.  If during that pat down they feel something or hear the crinkle of a plastic baggie, they have the right to search for whatever might be there.  Practically speaking, these days, the cops will pull everything out of your pockets when doing a pat-down, so don’t carry weed with you.

Remember, marijuana is illegal in Texas.  Completely illegal.  There is no medical marijuana.  There is no small amount that is legal or is “only a ticket”.  Any possession of a usable amount of marijuana can land you in jail.  So don’t carry it around with you.

If you get arrested, call me.  I have helped hundreds of clients win these cases, or at least minimize the damage they can cause.  Fortunately, these days, most prosecutors are young too and even if they didn’t smoke pot in school, they are aware of how common it is and how harmless.  I can usually work out something for you to avoid the worst consequences of the war on drugs.  Or if you refused to cooperate with your own arrest, I can sometimes get the case dismissed.

The above is presented for informational purposes only and is not intended as legal advice.  Each case is different and an attorney can explain the law to you and assist in defending you based on the particular facts of your case.

Dave Howard, Attorney