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

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.

What is deferred adjudication?

What is a deferred adjudication?

Deferred adjudication is a common way of resolving criminal cases in Texas, but it is often misunderstood. I will attempt to correct some common misconceptions.

What it is:

A deferred adjudication in many counties must be offered by the state in plea negotiations – that is just the county custom -- but it is possible for a judge to place you on deferred adjudication as well.

In a case in which someone has been offered deferred adjudication, the defendant will plead guilty to the allegations in exchange for the finding of guilt to be “deferred” by the court for a period of time. It is a guilty plea -- it is not a dismissal of the case. The court will find that there is enough evidence to substantiate the defendant’s guilt but if the court goes along with the state’s recommendation of deferred adjudication or on his own volition decides to, the conviction will not be entered.

You waive your constitutional rights when entering into a deferred adjudication. You waive your right to a trial, a right to appeal, and a right to remain silent, and these rights cannot be restored. You cannot be on deferred for a year and then decide you want a trial --- that ship has sailed and you cannot change your mind.

If there is strong evidence of guilt, a deferred can be a good resolution, but if it is a weak case, you may want to go ahead and press for a trial. A deferred adjudication is a serious undertaking. Why? Because when a conviction is deferred, you are placed on a tough probation. You must abide by all the standard terms of probation, such a drug and alcohol monitoring, meeting with a probation officer, performing community service, and classes and counseling. It is not fun, and it is not easy.

If you do not do well on this deferred probation, you will be subject to a “motion to adjudicate guilt” outlining why you no longer deserve to have a deferred and why a conviction should be entered. This motion causes a warrant to issue, but you are entitled to a bond amount being set by a judge. Most judges are very slow to give personal bonds on a probation case, so you are looking at having to bond out with a bail bonds man.

If you plead true to these allegations in the motion to adjudicate, you may be continued on a deferred, but you also may be convicted and placed on a “straight” probation OR you may be placed in the penitentiary.

NOTE: Deferred adjudications that are done successfully are NOT automatically sealed. Many times, you are eligible for the case to be sealed, but it is not done the minute you are released. You must petition for it and get a court order in a separate styled case. Once it is sealed, law enforcement and the state’s prosecutors will still be able to see that you were placed on deferred.

ALSO NOTE: Deferred adjudication is a conviction for immigration purposes. The government only cares that you pled guilty – not that the conviction was deferred. They care about your admission – not what the court did after that.

LAST NOTE: There are some criminal offenses in which deferred adjudication is not an option. The most common instance of this is DWI – the state CANNOT offer a deferred in a DWI and the judge CANNOT extend that to those charged with DWI. It is not possible.

Deferreds are not an easy undertaking. It is advisable to only accept one if there is substantial evidence of your guilt and the risks of trial are too high. If you are an immigrant with potential consequences of a conviction, you will not benefit from deferred. If you are not ready to abstain from drugs and alcohol, deferred is not going to work. I talk to a lot of people who “wish” they had never taken a deferred and tell me “the case was weak” but they pled to get it over with or get out of jail. Don’t be one of those people.

Indigent Defense: Using Experts

Low-Bono and Indigent Defense and the Use of Experts: Why and How to Do It

If you are poor (the fancy word is “indigent”), and you are accused of a crime, you are entitled to a court appointed attorney (or a public defender when the jurisdiction has an office).  Now that can be dicey, because you cannot choose your court-appointed attorney and there are very limited circumstances in which you can request a new one.  I do the best I can for all clients, court appointed or hired, but I cannot speak for all attorneys.

If you choose to scrape together some money and hire an attorney, you may be able to find one to work with you on a payment plan or for a reduced fee.  We sometimes call this a “low-bono” case.  I do this for some clients.

Bottom line is, you may not have any money to hire an attorney or you may run out of money by hiring an attorney.  You may have nothing left to fund other aspects of your defense.

In complicated cases, and in cases in which there are witnesses, you may need to utilize other professionals in your case to competently and successfully mount your defense.  You may need to use an “expert”.  This can be a psychiatrist/psychologist, a scientist, or an investigator.  These can all help either gather defense evidence or analyze and criticize parts of the state’s evidence. This can be very helpful in negotiations and persuasive with a jury at trial.

If you cannot afford an expert, your attorney can petition the court to order the prosecuting county to pay for your expert.  Under Ake v Oklahoma (a federal case), and State v Briggs (a Texas case) the county (or other relevant jurisdiction) has to provide you with money for a competent expert if you show that: 1) you are indigent (and you can qualify under this prong even if you hired an attorney if you have run out of resources) and 2) you make a substantial showing of material need for this expert. 

If science if a relevant piece of the trial, like in a DWI with a breath or blood test in which the state is going to have a scientist testify to their evidence of a particular Blood Alcohol Content, you can almost always show that you have a material need for your own expert to look at the state’s evidence and form an opinion.  If you have witnesses, you can usually show a need for an investigator as you (as the attorney or defendant) cannot interview these witnesses yourself AND testify to what they said. 

What do you do with an expert?  Choosing the right one is a different matter.  You might want to find one that another attorney can vouch for as effective and qualified.  You can ask them to write a report that you can use in cross-examination.  You can also ask them to testify (this usually costs additional money). 

The point is this:  a good attorney is going to know when and how to utilize an expert.  S/he isn’t going to be afraid to insist that the county pay for it. S/he isn’t going to be intimidated by scientific or pseudo-scientific evidence in your case and insist you plead guilty.  I’d like to think I’m describing myself.