Happy Holidays: Keep Calm, Have Fun, Don't go to Jail

Happy Holidays: Keep Calm, Have Fun, Don’t Go to Jail

This is going to be short. I have spent most of this evening decorating, watching Christmas movies, and eating Candy Cane Hershey Kisses.

This time of year is wondrous. People are nicer, our homes and the stores are decorated, and people are giving each other gifts. We get to spend time with friends and loved ones. It’s great. 

However, it is no coincidence that lots of people go to jail at this time of year. Be sure it’s not you.

DWI arrests increase during this time of the year. People are at holiday parties, happy hours, and holiday events at which alcohol is being served in great quantities. People may also be using drugs. This is particularly true on New Year’s Eve. People make mistakes and get behind the wheel. It is really important – for your own safety, the safety of others, and to avoid arrest – that you make alternative arrangements to get home safely. Lots of bars give taxi vouchers and there are ride share services that are easy to use. It’s not true that ride share has completely left Austin. Make arrangements to get home – have a plan – before you go out.

If you are sober and/or in recovery, this time of year is very stressful. Lots of people relapse. Go to a meeting if you feel like you are in trouble or thinking about using. If you relapse, you may overuse and put yourself in danger of arrest. Overdoses are frequent with people using again after a long period of sobriety. 

Seeing family is stressful for some people. It may lead to an increase in substance use if you have stress around seeing family or not seeing family. In the LGBT community, some people can’t go home and may feel very alone on the holidays. This may lead to increased substance use. Again, if you are feeling prone to using or overusing, go to a meeting or reach out to a trusted person.

Stress around money is high during the holidays. Substance use is high. We are seeing family. This leads to tempers flaring in some families and this leads to many, many arrests for assault – family violence. Again, having a plan is crucial. If you are going to be around a family member that you know gets under your skin, have a plan that you will follow if things get tense. Do not use substances around this person. Plan to leave and leave safely if things get heated. If you are in a pattern of family violence and you are the aggressor, you need to get help and most likely take steps to remove yourself from the person you are assaulting before you do the unthinkable. If you are being assaulted, you need to contact services in your area to develop a plan to get away from that individual before you get seriously hurt or worse. 

The holidays are great but it brings issues with family and life in general in focus, and this can lead to a great deal of stress. This is turn leads to behavior that can get you arrested. Think about things prior to them getting out of hand, and have a plan on what to do if you feel like the holiday stress is getting the better of you.

Jail is a terrible place to spend Christmas or ring in the New Year. Don’t start off 2017 with a court date. Do what you can now to make sure you have a happy and healthy holiday and new year.

#happyholidays #christmasarrests #christmasinjail #assault#assaultfamilyviolence #familyviolence #dwi #arrest #sobriety #drugs#stress #family

Dropping the Charges: Fact v Fiction

“Dropping Charges” : Fact vs. Fiction

When someone is charged with a crime against another person – who we call the “complaining witness” -- and an arrest is made and charges filed, there is often talk after the fact about that complaining witness “dropping the charges”. I will explain a little about the realities surrounding this here.

Once the case is accepted by the prosecution, either the County Attorney or the District Attorney, efforts will be made to contact the complaining witness to get his or her input. The complaining witness will be asked if what s/he told the police is true, what happened, what his/her history with the Defendant is, if violence has ever happened before the incident charged in this instance, and what the complaining witness wants done. At this point, the complaining witness can recant, deny the incident happened, change his/her version of the events, and tell the prosecution s/he does not want to pursue a conviction – ie that s/he wants the charges “dropped”.

If the prosecution never talks to the complaining witness, that may or may not be good for the Defendant. It may be interpreted by the prosecution in a way that is helpful to the Defendant because it may mean that if the case is set for trial, the main state’s witness will not be located in order to be subpoenaed, and will therefore be unavailable to testify at trial.

If the witness says s/he will not testify and wants to “drop the charges”, the prosecution will have to evaluate how strong the evidence is against the Defendant if the complaining witness will not testify. There may be evidence that, in the prosecution’s estimation, is enough to convict the Defendant even without the complaining witness. The 911 call, photos, independent witnesses at the scene who witness the alleged crime, and physical evidence among other things all may be enough to try and convict a Defendant without the complaining witness. If that is true, it may be the case that the complaining witness’s wish to “drop the charges” may be disregarded. This will be especially true if the complaining witness does not recant and tells the prosecution that the incident happened as s/he said it did but s/he simply does not want to pursue punishing the Defendant.

The prosecution may go forward even if the complaining witness does not wish to do so. If the defense attorney sets the case for trial, the complaining witness may still be subpoenaed. At that point, if the case is called for trial, the complaining witness is under subpoena, but does not show up, the prosecution at that point may indeed be willing to dismiss the case or severely reduce the harshness of the plea offered. It all depends on the strength of the other pieces of evidence in the state’s possession.

Sometimes, the Defendant may tell his lawyer that the complaining witness wants to sign an “affidavit”. This is referring to an “affidavit of non-prosecution”. This affidavit can be helpful – it is about the same as the complaining witness telling the prosecution that s/he does not want to pursue charges.

Complaining witnesses who have relationships with Defendants often ask the Defendant’s attorney what s/he should do if and when s/he receives a subpoena. Please be aware the Defendant’s attorney cannot advise the complaining witness to disregard that subpoena. It is unethical, as the Defendant’s attorney does not represent the complaining witness and cannot give legal advice. It is also criminal activity that can be charged as “witness tampering”, which is a felony in Texas and punished with possible time in the penitentiary. Lastly, if the Defendant has contact with the complaining witness about the case it may be criminal activity if there is a protective order in place and could possibly lead to charges of Violation of Protective Order. Also, if the state can show that the Defendant did anything that can be interpreted as threatening or intimidating toward the complaining witness to get her/him not to testify, the state can proceed on a "forfeiture" hearing in which they can argue that the Defendant has forfeited his right to confront the witness because of wrongdoing on his/her part -- and if they win the complaining witness's statement gets to come in without her/his presence at trial.

What might happen to a complaining witness if s/he disregards a subpoena? Potentially, technically if the witness is hand served with the subpoena, s/he may be “attached” if s/he disregards the subpoena and taken to court by the police to testify. If at that point s/he refuses to testify, s/he may be held in contempt of court and jailed until s/he agrees to testify. That is theoretically what could happen. This however is rare – but it does happen. Harris County is embroiled in a scandal right now where a complaining witness was jailed for refusing to testify and many in the County disagree with those actions. In reality, in Travis County and most counties, the prosecution is reluctant to attach people it perceives to be victims of crime in fear and hesitation to “revictimize” them. The answer to what is going to happen to a complaining witness who disregards a subpoena is essentially nothing. However, if the complaining witness passes up a chance to testify, it is probably gone forever. Not always, but probably. In very serious cases, if a complaining witness decides to cooperate after the case has been dismissed due to lack of evidence in the form of the testimony of the complaining witness, and the statute of limitations has not run, the case could be refiled. This can happen in very serious child sex abuse cases for example.

The point is: the state does not have to dismiss the case simply because the complaining witness wants the state to do so or because s/he says that s/he is not going to cooperate. That is simply one factor in the calculation the state makes in determining what their offer to the Defendant is going to be. A complaining witness saying s/he wants to “drop the charges” does not at all mean the case ends there.

Also, a word to the wise: just because a complaining witness is telling you s/he wants to drop the charges does not mean s/he told that exact same thing to the state. I have seen many Defendants surprised to find that the complaining witness who promised to “drop the charges” shows up to testify at trial. Its not always wise to count on witnesses not showing up.

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.