Pitfalls of Probation: What You Need to Know BEFORE You Sign Up

Sometimes, probation is a great offer on your case. If you are offered probation on a serious felony in which a long prison term is also an option under the law, you need to seriously consider taking it despite the multiple restrictions on your freedom you will experience.

However, on misdemeanors and state jail felonies, it’s a different story. You may be better off pleading to a short term in jail to finish the case. Or, in the alternative, if you are offered a reduction or a dismissal in exchange for doing something, like a class or a community service, you need to do it to avoid probation.

There are many, many pitfalls to probation. Many people approach probation as if it is an easy way to avoid jail or get out of jail quickly if you are in jail pretrial, but this is absolutely not the case and you need to rid yourself of this assumption. Probation is not easy and you have the threat of jail hanging over your head the entire time.

When you are on probation, you are seriously restricted in your freedom in many, many ways. You are given certain requirements and certain policies by which you must abide, and if you fail to do so your probation officer is going to file what is called a “motion to revoke probation”. Once this motion is filed, it will generate a warrant. You are usually given a no bond on that warrant, meaning you will not be allowed out on any type of bond. If a judge chooses to set a bond, it is really, really unlikely you will be allowed out of jail on a personal bond. If you cannot get a surety bond, you will be in jail until the motion to revoke probation is resolved.

I will discuss three common ways you might violate your probation:

• Committing a new offense: You will get a motion to revoke probation filed if you commit a new offense of a Class B misdemeanor or above. Do not think under any circumstances that your probation officer is “cool” and will not file a motion if you get arrested again. S/he will and you will go back to jail even if you are released on the new offense already. If you cannot make bond on the new offense, then you will be held on the motion to revoke and the new offense.

• Drug and alcohol use: It is absolutely a violation of your probation to use alcohol at all or any kind of illicit drug or prescription drug if it is not prescribed to you. If you go into a probation meeting looking like you are intoxicated or hung over, the probation officer is going to test you – and if you test positive s/he is going to file a motion to revoke. There is no room for just a single positive test.

• Absconding or missing meetings with no phone call or attempt to reschedule: missing meetings with your probation officer is not allowed. If you miss meetings and make no attempt to reschedule, you will get a motion to revoke filed.

I get many phone calls from people who want off probation and tell me that “they did not realize this is what they were getting into” when they pled to probation. I represent many clients on revocations of probation. Probation is not an easy path. Jail sounds like a terrible fate, but it is important to remember that you may go back to jail anyway if you are filed on for revocation.

If you are facing a probation revocation, call me today to talk about the possibilities of how to resolve your case.

Happy New Year: Five Ways to Stay Safe and Free in 2017

Five ways to stay out of trouble in the New Year:

Happy New Year!! I hope you have a prosperous, peaceful one.  It is no one’s goal to get arrested and charged with a criminal offense in ANY year, and to that effect I am going to give you five ways you can avoid an arrest this year: 

1.        Do not drive with marijuana in your car:

I do not suggest being a heavy user of marijuana.  It is not the best path to prosperity and productivity.  However, if you are going to use marijuana in any quantity, keep it at your home, locked away safely.  Driving with it is a very bad idea because the scent of marijuana gives a police officer probable cause to search your car and/or prolong the detention long enough to call a K9 to do a sniff-search.  If the marijuana is found, you will be charged with possession of marijuana.  If you must drive with it, limit the times you do this and only do it when it cannot be avoided.  When you drive with it, keep it an air tight container out of view, or even invest in a portable vacuum sealer to seal it up before driving.  NEVER SMOKE MARIJUANA IN YOUR CAR.

2.       Always have a safe ride home after drinking:

If you are going to drink alcohol away from your home, always, always arrange for a sober (completely sober – not just “not that drunk”) ride home.  Take a cab, have a designated driver, take a ride share, or take a means of public transportation.  Arrests for DWI are increasing nationwide, and even if you are not truly intoxicated and have only consumed a limited amount of alcohol, it is an arduous undertaking to beat a DWI.  It is also expensive.

3.       Do not gamble at shoplifting:

You may not get caught every single time if you are a habitual shoplifter.  But you will get caught eventually.  Shoplifting charges are embarrassing, a pain to dispose of, and will disqualify you from many, many jobs.

4.       Do not drink to the point of oblivion in public:

Public intoxication arrests are common.  If you get very intoxicated and start causing a scene around a police officer, or if you are intoxicated and cannot seem to find your way home, you will probably get arrested for public intox.  APD uses these as a “end the situation” type of arrest – if they don’t know what else to do with you but they have to figure out something because you can’t stay out on the street due to your intoxication – they will take you to jail for Public Intoxication.

5.       Do not stay in toxic relationships:

If you are in a toxic, dangerous relationship – GET OUT.  Do it as soon as you can safely.  Yelling, verbal abuse and emotional abuse will lead to physical abuse and this will lead to intervention by the system.  Even if you call the police because you are the one being abused, it is not always the case that the police arrest the right person.  Sometimes they mistake defensive injuries as the primary injuries and arrest the person that was the actual victim.  If you need resources, call the Domestic Violence Hotline.

I hope that all my clients, my potential clients, and their friends and family can have a peaceful year this year and stay out of the system.  It is so time and resource consuming to get arrested over and over again, so be smart and employ these strategies above so you can stay free this year.

Happy New Year from Stefanie Collins Attorney at Law.

It's Impossible and Unethical: Why a Lawyer Can't Guarantee a Result

It’s Unethical and Impossible:  Why Your Lawyer Can’t Guarantee a Result

I get a lot of people who call wanting me to help them on their case.  They may want out of jail or they may already be out on bond and be looking for a lawyer.  It is inevitable that many of them ask me:  what can you do for me?  What am “I looking at”?  What am I facing?

I’m going to tell you what many lawyers won’t.  It is not only unethical for a lawyer to be able to promise you a result on your case – no jail, no prison, probation, or a dismissal – it is impossible to do any more than go over the possibilities on a first phone call.  Anyone who tellsyou “oh I can get you probation” or “oh I can get that dismissed”  is unethical and probably trying to get you to make a down payment.  Do not be surprised that if you hire a lawyer based on the fact that they promised you a result, they will come back later telling you it’s not going to happen.  At that point, you’ve already spent your money and have to make a decision on whether to start all over again with another lawyer.  That means cutting your losses – you aren’t going to get any of that money back – and spending money on another lawyer.

·         It is unethical. 

Lawyers are bound by rules of discipline.  These are rules that govern the way we practice.  Lawyers can be disciplined by the state bar – including having their licenses suspended or permanently revoked – if they violate the rules.  One of the most important rules is very clearly stated :  do not promise a result.  It is a very sinister thing for a lawyer to promise a result.  Do not get it twisted:  lawyers do this to get you to hire them and take your money.  They absolutely know that a result is not guaranteed in any case.  It’s just impossible – its tantamount to telling the future with certainty.  If they tell you different – they are lying.

·         It is absolutely impossible.

Legal matters are unpredictable on some level – even the most simple ones may have an unknown, unpredictable element.  We have an adversarial system and results come about due to all sides coming to a compromise or a jury or judge deciding after a trial on the merits.   A lawyer cannot control what the other side is going to do – what they are going to want, what they are going to offer, or what evidence they have that you don’t know about yet.  A lawyer cannot at all tell what a jury or judge is going to do after a trial.  It is tantamount to telling the future.  Lawyers are not psychic.  (And sorry to break it to you – no one is a psychic.)

What is allowed?  Lawyers can present all the likely and unlikely outcomes – the full range of possibilities.  In a criminal case, they should go over the full range of punishment.  They can discuss the likelihood of dismissal.  They can discuss the likelihood of probation.  But particularly in a first phone call or first consult, this is all to be done with generality.  It is not until your attorney gets all the evidence together, completing the discovery process, and starts negotiations with the opposing party – the prosecution in a criminal case – that it becomes more clear what the options in your case are. 

To put it succinctly – do not ask a lawyer if s/he can get your case dismissed and keep calling lawyers until you find one that assures you s/he can.  That inevitably going to get you someone treading in unethical territory and is probably interested more in your money than in your case.  The best lawyers are going to explain they cannot promise a result and will do the best they can in your case given the facts, the evidence, policies in that county, and your history.  

What is 12.44(b)?

What is a 12.44(b)?

Texas Penal Code 12.44(b) reads: “At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.”

What does this mean?  It means that if you are charged with a state jail felony, the state can move to reduce it to a Class A misdemeanor and punish the crime like a Class A misdemeanor, which means you could be punished by up to a year in jail, or probation, or a deferred adjudication probation. 

This means that your record should reflect that you did not plead guilty to a felony but instead pled to a misdemeanor offense.  This could be like an “attempted” possession of controlled substance less than a gram – which is a Class A misdemeanor. 

It also means that if you are placed on probation and the state moves to revoke your probation, your potential jail time is only up to a year in the county jail. 

It also means that if you are successful on a deferred adjudication, you are automatically eligible for a non-disclosure after your successful release from deferred probation.

Potential problems may include: 

The misdemeanor is not usually refiled as a new case.  You are punished under the old cause number, and if the clerk does not code the reduction right it may look like, on your record, you pled to a felony.  Your defense attorney should do everything s/he can to amend the information, especially if you have immigration concerns, to reflect the misdemeanor allegation.

The state has to agree to 12.44(b).  If you are charged with a state jail felony and believe you should receive a 12.44(b), call me today to talk about the possibilities. 

Cross Examination: What you need to know before you testify

Cross Examination: What you need to know before you decide to testify

If you are charged with a crime and you decide to exercise your right to a trial, either by jury or by the court, you will have to decide if you want to testify on your own behalf or not.  This is your choice.  Your lawyer cannot stop you from testifying, and on the other hand, no one can force you to testify.

There are some misconceptions to testifying.  I will attempt to clarify some. If you are thinking of testifying, you need to have serious, long conversations with your attorney so that you will be prepared.

Fifth Amendment:  If you are on the stand as the Defendant, you may think that you can refuse to answer questions based on your Fifth Amendment right not to incriminate youself.  This is true, but by exercising your Fifth Amendment privilege, you are essentially admitting that by answering truthfully you will be incriminating yourself.  That is not something the jury is going to ignore.  The judge will have to do an analysis to determine if you can assert your Fifth Amendment privilege, and you will only get to do so if you will indeed be potentially incriminating yourself.  Simply trying to assert the Fifth Amendment privilege may be a red flag to juries that you are being deceptive, have something to hide, and were involved in criminal activity.

Cross Examination:  The prosecution will get to cross examine you.  This is a question and answer form – it is not a running narrative.  You will only be able to answer the questions asked by the prosecution and you will not get to elaborate or explain until its your attorney’s turn to ask you questions again.  Cross examination is not going to be a pleasant experience.  The state’s attorney is going to try to make you look like a liar and like you are guilty.  The prosecution is going to ask you questions designed to make you give inconsistent statements.  The prosecution is going to ask questions that make your version of the events look incredulous.  Its not just a “Here’s what happened.  Let me explain” type of thing. 

Past criminal history:  Some or all of your criminal history may be fair game on which the prosecution can cross examine you.  You will have to admit, if asked, if you’ve been convicted of certain crimes in the past 10 years.  This is regardless of whether or not this is the same type of crime or whether or not you’ve “paid your dues”.  This is to make you look like someone who is prone to dishonesty and criminal behavior. 

Perjury:  Your attorney cannot help you commit perjury.  S/he is strictly, explicitly barred from suborning perjury and cannot put you on the stand if s/he knows you are going to lie.  If you start lying whileyou're on the stand, your attorney is going to have to let you say your piece in many instances but cannot ask you any questions to help communicate your story to the jury.  It is not a good idea to perjure yourself – you may be opening yourself up to further, serious criminal charges. 

Ultimately, the jury may well pick up on subtle signs of deception if you are not telling the truth.  Evasiveness, defensiveness, subtle body language – the jury may use all that to come to the conclusion that you are lying.  It may in some instances be very important for you to testify – you may have to if you are the only one in possession of the testimony that you need to get in, for example an alibi or a self defense affirmative defense.  It may in some instances be very dangerous for you to testify – especially if you are not going to be completely honest.  Please talk to your lawyer and listen to him or her and discuss the ultimate goal you hope to accomplish with your testimony.

Why Its Important to Go To Court on Class A and Class B misdemeanors

Why it is important to go to court on your court dates:  part two --- Class A and B misdemeanors

In this article I am going to run down what happens if you miss a court date on a Class A or Class B misdemeanor.  I will talk about Travis County specifically and then in general terms about possibilities throughout the state of Texas.

None of the consequences of missing a court date on a Class A or Class B misdemeanor are good and they should be avoided at all costs.  If you are facing emergency circumstances, you should contact your lawyer if you have one or the court you are supposed to report to if you do not have a lawyer and explain the circumstances.  Simply not showing up will result in things that can lead to you spending more time in jail than necessary.

Bail Jumping and Failure to Appear:  If you have been charged with a Class B or Class A misdemeanor and miss a court date, you could very well be charged with an additional Class A misdemeanor of Bail Jumping and Failure to Appear.  The court staff has to go through a procedure to ensure you are indeed not present in order to charge you with this, but regardless of whether or not you are technically guilty, being charged with this will complicate your life.  You will have a warrant out on the new charge of Bail Jumping and Failure to Appear and probably on the underlying original charge as well, and you are risking arrest on both.  If you are arrested on both charges, even in Travis County it will be very unlikely you will get a personal bond.  You will have to use a bail bondsman to post a surety bond on both cases, which costs you much more money than just bonding out on the original charge. 

Being charged with Bail Jumping and Failure to Appear is not likely in Travis County except in one instance.  This is only charged when you are given a cite and release – explained in other articles, this is when you are given a citation on a Class B or Class A misdemeanor instead of going to jail and given a court date to report in a Justice of the Peace court – and you do not show up.  In this instance, the County Attorney will file a Bail Jumping and Failure to Appear charge and you will be expected to post bond on this and the original charge in order to bond out if arrested. 

Bond Forfeiture: If you are out on bond for a Class A or Class B misdemeanor – either personal or surety bond – and you fail to appear for court, your posted bond will be “forfeited”.  This means you no longer have a good bond.  A warrant will be issued for your arrest. 

In Travis County, the County Attorney will file a civil suit against you if you are out on personal bond for the full amount of the bond set when you were originally magistrated.  You may get a default judgment against you if you do not file an answer to this civil suit.  It may go to collections or be placed on your credit report.  It is easy to settle these suits for much less than the full amount but you will still have to pay something.  You may not be able to get the warrant withdrawn and get back on the court’s docket in good standing with a good bond if there is a civil suit.  It is up to the court.  Some will expect you to settle the civil suit first. If you are out on surety bond, the civil suit will be filed against your bail bondsman and in turn, your bail bondsman will seek to get the money they pay to settle it from you. 

If you have a bond forfeiture and are arrested on the warrant that was issued, a new and higher bond will be set and you will not be eligible for personal bond.  No judge except the no one presiding over your case will be inclined to release you except in rare circumstances – so if you are arrested on a weekend you will be there until Monday when the judges come back.  You will have to hire an attorney except in rare circumstances to ask the judge to do a bond forfeiture set aside, reinstate your bond, release you on the reinstated bond, and put you back on the docket with another court date. 

In some places around Texas, both a new Bail Jumping/Failure to Appear charge will be filed and a bond forfeiture will be entered.  It is very complicated to sort this out and you may not have a method of being released except posting a new surety bond. 

The moral of the story is:  don’t miss court and if you do, tell the court your circumstances – which have to be an emergency – prior to not showing up.  Don’t just throw your hands up and hope for the best.  You will not like what happens.

If you have a bond forfeiture or warrants out on an original charge and Bail Jumping/Failure to Appear – call me today.  I’m happy to help.