Do Not Get Mad With The Messenger

Here is a scenario that never fails to upset people.  It goes like this...Mr. X who is on probation for a felony gets arrested for a misdemeanor like DWI.  X and his family is desperate for him to get out of jail so they bond him out of jail.  Mr. X calls my office looking for a lawyer.  Once I find out that he is on probation I mention the likelihood that the felony court will be filing a motion to revoke his probation and he will need to make a second bond once the motion is filed .  This is when the conversation starts going downhill.  Mr. X begins to question my comment.  He does not understand why if he is on felony probation a misdemeanor charge will cause him to make another bond especially if he is innocent of the new charges.   Despite trying to comfort him by telling him that he is presumed to be innocent of the DWI he does not understand why a court will try to revoke his probation.  There are several things at play.  While Mr. X made the bond for his new arrest he will be forced to make a new bond for his felony because that court believes he has violated his probation terms.  A common term of probation is that there will be no alcohol consumption.  Also, a probationer is not allowed to commit any crimes while on probation.  The catch in Harris County Texas is that when a court believes a probationer has violated their probation they not only issue a warrant for the person's arrest, but they set their bond at zero.  Thus, a person must be arrested for the probation violation and then an attorney may request a bond from the felony court when the person is police custody.  One other thing, just because someone makes a bond on their new case it does not guarantee that the judge will set a bond on the probation violation.  For a recent example of this happening please click here.  In the future, please understand that I do not set the rules I am only informing you of all the consequences that are about to your particular situation.

If you need the help of a Houston Lawyer please contact me at 713-242-1779.

The Harris County, Texas Pretrial Diversion Timeline

I have run into some confusion regarding the time line for submitting a pretrial diversion packet at the Harris County Courthouse.  Some courts and misdemeanor prosecutors seem to think that there is a forty (40) day time period where Carl Hobbs, the chief of the misdemeanor division, will consider a person for a pretrial diversion.  I do not know where this rumor started, but it has gained some steam lately.  Perhaps, it is because Mr. Hobbs had a well known rule when he ran the Welfare Fraud division that  a person must accept his plea offer of reducing the case to a misdemeanor before 40 days after his initial setting.  I had the opportunity to speak to Mr. Hobbs about this issue and he made it clear that this rule does not apply to pretrial diversions.  It is not to say that he prefers them to be presented within the 40 day window, but presenting it after that time frame will not preclude a person from getting one granted.

Typically, a pretrial diversion is granted to a young person that is a first offender, that has a scholarship or is still in school, thus losing something of value to them.  Also, pretrial diversions may be granted to someone that will lose their job with any type of community supervision.  I have found that since Pat Lykos became the District Attorney of Harris County, Texas they have been granted with more frequency than in years past.

If you need the help of a lawyer for a welfare fraud or food stamp case do not hesitate to contact me at (713) 242-1779

If you are unsure whether you qualify for a pretrial diversion You should discuss this option with your attorney.  While they may not discuss it at your initial meeting it would be negligible of the attorney not to explore it before entering any type of probation since it allows your record to be expunged in the future.

Your welcome...but you did the hard part.

One of the most rewarding things of being a criminal defense lawyer is the satisfied client.  Clients are especially grateful after I get their petition for non disclosure granted by the court.  While I appreciate their gratitude they fail to recognize that it is their hard work that led to successful completion of the deferred adjudication allowing them to be eligible for the petition of non disclosure.  Typically, a misdemeanor deferred adjudication is one year in duration of reporting to a probation officer,  performing community service and attending different classes.  This takes time and interferes with a person's life.  You would be surprised how many people are unable to successfully complete a deferred adjudication and thus are precluded from ever having their record sealed.

Houston...Yo Quiero Probation!

While I understand that the Harris County District Attorney's Office (HCDAO) has a policy of not offering undocumented defendants probation for any case the law disagrees with their position.  Despite the fact that I understand the policy does not mean that I have to agree with it. 

 Recently, I was representing a young woman that was charged with a misdemeanor.  Her parents brought her to the United States when she was just an infant.  She did not play a role in coming to this country herself.  She went to school in Houston and is currently attending college.  She is on target to graduate in one year from  the University of Houston.  She has never visited the country where she was born.  The life she knows is in Houston.  However, according to the HCDAO because she is undocumented she is not being offered the chance to complete probation as punishment.  This is merely a political position by the HCDAO.  The HCDAO is without merit and mistaken.  In fact, some younger prosecutors that I have come across are under the belief that she is not eligible to receive probation at all.  Luckily, this is not the case.  The HCDAO may not offer her probation, but this does not mean that she is precluded from receiving this from a judge or a jury.  When the HCDAO sets a policy it needs to inform the junior prosecutors that despite making this their policy it does not make it the law.

Para personas hispanas:  Escoje un abogado en Houston que hablar Espanol!  Uds. puede recibir probation sin embargo que este en este paiz sin documentos. 

Por favor llamar mi oficina (713) 242-1779 si necesita ayuda de un abogado en Houston.

The Houston DWI Divert Limbo...

As one of the few Spanish speaking DWI lawyers in Houston I represent a fair amount of Spanish speaking people that are charged with the crime of driving while intoxicated.  While they may not speak English they are still lawfully residing in the United States.  Some are citizens with others being resident aliens, or in the United States under some sort of Visa.  Some are here with proper documentation while others are in the process of getting their status sorted out.

The Harris County District Attorney's Office (HCDAO) was initially clear about what type of people would be accepted into their DIVERT program, or so I thought.  They were only accepting people that were in this country lawfully.  One would think that this is straightforward enough, but actually like most other things with the DIVERT program this is ambiguous  Now I have been told, if a person is in the process of obtaining his residency and not yet a citizen or permanent resident they will not qualify for the DIVERT program.  While the Federal government allows them to stay in this country indefinitely the HCDAO does not allow them to enter the DIVERT program.  This is difficult for my clients to comprehend when they are doing everything required of them by the Federal law.  Is the HCDAO being too selective of people when it comes to their DIVERT program or just  too exclusive since they do not have an issue allowing them to go on probation for the same DWI charge.  Regardless, this leaves my clients in DIVERT limbo.

This Houston Criminal Defense Attorney Hates It When An Offer Is Withdrawn For No Reason

Part of my job as a Houston Criminal Defense lawyer is to negotiate on behalf of my clients.  In all cases the assistant district attorney (ADA) handling my client's case will make us an offer to settle the case in lieu of a trial.  In some instances, the ADA will not be able to make a reasonable offer.  If we decide that we do not find the offer to be appealing we reset the case to come back another day.  Most of the time, the ADA will keep the offer available and will let me know if they plan on withdrawing the offer at some point. It is not standard practice for an ADA to retract an offer before we formally reject it.  This rarity occurs when a new ADA is assigned to a case and they disagree with the offer that was made by their predecessor.  Recently, I had a client decide that they wanted to accept the last offer made by the ADA the day before his next court setting.  Since it was not a jury trial and I did not know that a new ADA was assigned to their case you can imagine what happened next.  The offer was doubled by the new prosecutor.  Despite detailing to the new ADA how we arrived at the proposal the offer was withdrawn.  I was surprised with their final decision and I was left trying to explain this to my client.  This left us with the easy decision of rejecting the new offer and proceeding to trial.  Fortunately, a person accused of a crime is presumed innocent and the fact that they were willing to plea guilty at one point is excluded from their trial.

This situation can happen in any type of case from a simple marijuana possession to a Murder.  It is most likely to happen in a felony case.

For more information regarding your criminal case please visit our firm website: http://www.martinezlawhouston.com.

Ecuador Judges Visit The Harris County Courthouse

You may have seen a group of hispanic judges being escorted around the courthouse today.  I saw them in Judge Jean Hughes' court, Harris County Criminal Court at Law #15, and Judge Mark Atkinson's court, Harris County Criminal Court at Law #13.  The visiting judges are from the tiny south american country of Ecuador.  They were studying the Harris County criminal justice system.  seemed to be intrigued by this thing we call probation.  The reason for this is that the Ecuadorian system does not have this available to a defendant that is guilty of a crime.  Can you imagine living in a country where an accused does not have the opportunity to make bail or where the court system does not believe in rehabilitating anyone that is convicted of a crime?

Chris Brown and His Entourage Unable to Pack Heat

Mr. Brown better keep in mind that Federal law prohibits him from possessing a firearm since he has been placed on probation for a domestic violence case.  Also, as Ron Chapman, a Florida Criminal Attorney, points out the Federal Gun Law does not allow an employee of someone convicted of domestic violence to possess a firearm during the course of their employment. Therefore his "entourage" should be on notice as well.

Routinely, attorneys fail to mention these consequences to their clients when it involves family or domestic violence.  I imagine it mainly happens when a lawyer that does not practice criminal law decides to "dabble" with these type of cases without knowing the far reaching consequences. 

DWI Pretrial Diversion Plan Not Ready Yet

This past Monday was one of the most chaotic days for Harris County Misdemeanor Prosecutors because every criminal attorney in Houston, like myself, wanted to know the facts surrounding Pretrial Diversions for first time DWI offenders in Harris County, Texas.  Unbelievably, the prosecutors had as much information as I did.  They did not know the guidelines, when it was going to be implemented, or who would qualify.  One thing is for sure, Kate Dolan, the chief of the misdemeanor section, is going to be a busy lady.

If you have any questions regarding a DWI in Texas please contact a Houston DWI Lawyer at (713) 242-1779 visit our firm's website at: http://www.martinezlawhouston.com.

Judges Even Checking Your Driving Habits

As a DWI Lawyer it is my job to monitor what the courts are doing with defendants in their courts.  For example, what ever happened to being presumed innocent?  Just this week I overheard a judge reprimanding a person on bond for DWI that his driving habits were not "normal" according to his interlock log.  I almost fell out of my chair that the court  would be monitoring a person's driving habits so closely when they are only accused of a crime.  The judge went as far as threatening to add the scram device as an added condition to the poor guy's bond. 

The Martinez Law Firm: http://www.martinezlawhouston.com.

The Scram Device Is How Much?

As a Houston DWI Lawyer I like to inform my clients of what to expect in a DWI case.  I tell my client's that they need to be careful what they wish for in a criminal court case.  For example, a lot of people want to avoid having the interlock installed in their vehicle by telling the court that they do not have a car.   Typically, the court does not just take your word.  The court asks our client if there is any vehicle in their home that they have access to use.  Also, the court makes the person sign an affidavit stating they will not be driving any vehicle while they are on bond for their DWI case.  The consequences of being caught driving under this scenario is severe.  You could be arrested for driving while your license is suspended.  If this is the case the Judge may revoke your bond, and the Judge may also refrain from granting you an occupational license in the future.  Lastly, many courts will order our client to get the scram device installed if they claim that they do not have a vehicle to drive.  Most people say "no problem" until they realize that it will cost them $12 a day or $400 a month to have this device.  This is a significant amount considering that a DWI case may take from two to six months to complete.

If you have any question concerning your DWI case please visit our website http://www.attorneydwi.net or call us right now for a free consultation (713) 242-1779,

No Parole For State Jail Felony Crimes In Texas

As a Houston Criminal Lawyer I have family members regularly contacting me wanting to know when their loved one will be released from the Texas State Jail.  Please remember that when someone is sentenced under the State Jail Felony provision of the Texas criminal code they are not eligible to be released early as a parole.  The range of punishment for a State Jail Felony is from 180 days to two years in the state jail and an optional fine up to $10,000.

If you need help with your criminal case please call our law firm at (713) 242-1779 or visit our website.

Selective Probation in Harris County, Texas

As a Houston Criminal Defense Attorney I must admit that I was shocked when I heard a rumor regarding the Harris County District Attorney's Office implementing a new policy whereby prosecutors would not offer probation to an accused unless the accused swore to be residing legally in the United States.  One of my close friends, that is a prosecutor himself, confirmed not only that this is fact, but there will be a document that a defendant will need to swear to before a plea agreement is finalized. 

This new policy wrong on several levels.  It seems to be politically motivated.  Pat Lykos, the District Attorney of Harris County, was elected to uphold the law of the state of Texas.  The policy may seduce the most steadfast of conservative Republicans in Houston and beyond, but it is misplaced and a subtle form of racism.  It is very easy for people to say "He is an illegal get him out of our country."   However, the law states that anyone that is in this country is presumed to be here legally.  Also, every person in this country  has a 5th amendment privilege regardless of their status.   On one hand, by requiring anyone that is undocumented to swear that they are here legally before receiving probation the District Attorney's Office is encouraging them to commit perjury.  On the other hand, if the defendant tells the truth the consequences are twofold.   They will not get the probation and they have given the Government evidence to prove that they are committing a Federal Offense.  What competent criminal defense attorney would advise their client to do anything other than to remain silent?  Thus, the District Attorney's office is punishing a defendant for exercising their right to remain silent and that is a clear constitutional violation. 

Below is a copy of the 5th Amendment.  Perhaps, the Lykos administration should give it a read if they have done so in a while. 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

With this new policy the Harris County District Attorney's Office is disregarding Texas law.  For example, the law in Texas clearly states that low level felony drug possession for first time offenders is a mandatory probation.  The law does not differentiate between those that are here legally and those that are undocumented.  The Lykos administration is essentially stating that they will not follow Texas law.  Correct me if I am wrong, but the last time I checked our District Attorney was elected to follow the laws of Texas.

More practically speaking, what defense attorney that has a client on bond that is undocumented will enter into any type of plea bargaining when they know that a prosecutor's hands are tied when it comes to getting probation for their client.  A competent criminal defense attorney knows that a jury is not precluded from granting an undocumented person probation.  Additionally, any potential juror that can not consider granting probation for someone that is undocumented should be exposed during voir dire and kept from serving on the jury.

My hope is that Harris District Attorney's Office reconsiders this policy and decides that despite being a hit politically legally it is without merit.

 

One and Done for the DWI Groom in Houston

Billy Puckett, the groom that was arrested on his wedding day for DWI in Houston, pled guilty on Friday, on his first court date.  Mr. Puckett received the standard probation for a first time offender, a one year probation, a small fine, and community service.  Curiously, he was also ordered to have an ignition interlock installed in his vehicle.  The interlock device is typically ordered in Houston when someone is convicted of a second DWI, or they provided a breath/alcohol sample above .15.I I wish Mr. Puckett all the best.

The Martinez Law Firm

 

Sexual Registration Can Not be Negotiated

I have heard two different Houston Criminal Defense Attorneys this week trying to negotiate with the prosecutor that deals with crimes against children in Harris County, Texas, Texas for a waiver of the sexual registration requirement in an aggravated sexual assault case in Houston.  This would be something that every attorney that practices sexual assault in Houston would request except that the prosecutor is not allowed to do such a thing unless they reduce the charges to something that does not require registration.  I noticed the prosecutor completely disrespect the attorney after such a uninformed comment.  Frankly, any attorney that makes such a dim witted comment subjects themselves to criticism.  I feel for the client that is likely being given bad advice concerning sexual assault registration.

If you would like a free consultation regarding your sexual assault case contact us at (713) 242-1779 or click here to visit our website.

Why is M.A.D.D. targeting the first time DWI offender?

I have discussed before how Harris County Judges treat those accused with their first DWI. There are a lot of judges that will go beyond what the law requires when someone finds themselves in court for their first DWI like requiring a person to install the ignition interlock device when they are involved in an accident .  Now MADD is pushing legislators to require anyone convicted of a DWI in Texas to get the ignition interlock device. This proposal is going too far.  Our DWI laws already provide a substantial hardship for someone convicted of a DWI. MADD likes to point out recent deaths that involved repeat offenders driving a vehicle.  In my opinion, relying on these instances is misplaced.  Why punish the first time offender when there are programs in place to make sure this does not happen again such as the Victim Impact Panel that is usually led by a MADD representative, the DWI School, and the drug/alcohol evaluation that a person undergoes when they are placed on probation.  Also, MADD overlooks that anyone that has an alcohol rate above rate over .15 when driving is required to place the device in their vehicle.  Texas law adequately deals with repeat offenders by requiring a hard suspension (no occupational license) for those convicted of a subsequent DWI within five years. Additionally, DPS license suspensions increase for repeat offenders,  MADD should focus their attention on someone other then the first time offender who usually has not been arrested before and is unlikely to re offend because of the traumatic experience of being arrested.  I am sure the "Benjamins" have something to do with this new crusade.

If you need assistance with your first DWI case in  the Houston, Texas area please contact our law firm at (713) 242-1779 or click here to visit our website.

Houston, Harris County Courty Early Terminates Your Probation .

I have had several appearances this year in the 177Th District Court where Judge Kevin Fine is now the presiding judge.  I have noticed a refreshing change from the bench.  Judge Fine is really encouraging everyone who is fighting a drug problem to seek treatment for their addiction.  Most importantly, he has told me that he is an avid fan of early termination for people that elect community supervision.  Of course, the person must be doing well and have reached the required time to be eligible for early termination.  This benefits someone tremendously because the clock starts ticking to qualify for a motion for non disclosure if they received deferred adjudication.  Hopefully, this will be an ongoing trend in Harris County, Texas since I have found it onerous to get someone early terminated in the past.

I hope that Judge Fine continues his innovative thinking and maverick personality during his judicial tenture.

The Maritnez Law Firm: http://www.martinezlawhouston.com.

I Hate a Prosecutor's View of Cocaine.

I was having a conversation with a prosecutor that I have known for over ten years recently about why the Harris County District Attorney's Office refuses to use 12.44(b) punishment for state jail felony drug cases.    This type of punishment gives a prosecutor the discretion to reduce the charges from a felony to a misdemeanor.  His reply was "how does that help me?"  I tried to impress upon him that his job was to make sure that justice is done.  I tried to let him know that the general consensus among the citizens of Texas is that low level drug users should not be sent to prison.  He refused to be swayed.  He just kept stating how does this help me  Ironically, he said he would start treating those cases like misdemeanors when the Texas legislature changes the law.  He fails to take into account two things.  First, the Texas legislature has stated that the prosecutor may reduce a state jail felony to a misdemeanor.  The Harris County District Attorney's Office does not acknowledge this law.  Second and most importantly, the comments section of the Texas Rules of Professional Conduct states: "A prosecutor has the responsibility to see that justice is done, and not simply to be an advocate." (Rule 3.09 Special Responsibilities of a Prosecutor).

If you need help with your drug case in Texas please contact our law firm at (713) 242-1779 or visit our website at http://www.martinezlawhouston.com.

Turning Point- a worthwhile community service location.

One of the many conditions that a person receives when they get probation is community service.  It is quite difficult for a lot of people to take time out of their lives to fulfill this requirement.  The courts understand this so they give most people a minimum of hours of community service that a person must complete on a monthly basis.  Of course, a person may do more then the minimum to finish their required amount.  A frequent question is where someone will be doing their community service.  That is usually determined by where the probationer lives.

This past weekend I personally experienced one of the places where community service is done.  I met and helped the people at Turning Point Center.  I have not been to many community service locations, but this seemed like an appropriate place.  The center is run by volunteers and all the work is done by the residents.  Best of all, the residents need and appreciate the help.

Do Not Stop Reporting To Your Probation Officer.

The number one reason for a probation violation to be filled is that the probationer does not attend their scheduled visit.  There are several reasons why this may occur,  Commonly, they do not have the money to pay for their probation and secondly they think they might test positive for drugs if they are drug tested.  Most judges have a working knowledge of all their probationers via their probation officers and want them to succeed.  Thus, they find it insulting when a person  knowingly fails to meet with their probation officer.  A judge usually understands the financial hardship one may be going through.  In fact, a judge can not violate a person's probation solely for not paying the money that is owed.   Additionally, most judges understand that someone may have a drug problem if they test positive more then once but they will be less likely to offer anyone assistance if they fail to show up for a scheduled visit.  In summary, failing to attend a scheduled visit may be more harmful than you may realize.

If you would like to speak to one of our attorneys regarding your particular situation please call our law firm at (713) 242-1779.  Also, you can visit our website at http://www.martinezlawhouston.com.

The time has come for the Harris County District Attorney's Office to start using 12.44(b) punishment.

This session the Texas legislature is considering reducing the punishment of possession of less then a gram of a penalty group 3 drug like cocaine from a state jail felony to a misdemeanor.  In fact, Judge McSpadden, presiding judge of the 209th District Court of Harris County, has been promoting this change in the past and now has the support of his colleagues.  Unfortunately, the Harris County District Attorney's Office does not agree.  Our elected District Attorney has a bigger picture in mind.  That sounds very comforting, but most people want instant results.   If she is concerned about jail overcrowding how about using the tool that the Texas legislature has already given them in the form of "12.44" punishment more readily. 

Sec. 12.44.  REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT.  (a)  A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.

(b)  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.

It is a shame that prosecutors in Harris County, Texas dismiss more cases than offering a "12.44(b)."  Surprisingly, new felony prosecutors feel like there is an office policy against this type of punishment.  I have never know this to be the case, but most prosecutors are extremely reluctant to extend the offer and are surprised when I request one.  I have never known a real reason for this other then "we do not do that in Harris County."  The jail overcrowding issue could be addressed by implementing a new attitude towards 12.44(b) punishment and accepting charges for low level marijuana charges when a police officer decides to give someone a citation to appear for court instead of arresting them.

If your need assistance with your drug charges in Texas please contact our law firm at (713) 242-1779 or visit our website at http://www.martinezlawhouston.com.

 

 

Your driver's license is suspended for any drug conviction.

There are several different ways a misdemeanor and felony judge takes a plea.  As you might expect, a felony judge discusses a lot more information then a misdemeanor judge does during a plea.  Nevertheless, one admonishment that is frequently disregarded orally by a felony judge in Harris County, Texas is that a drug possession will cause a person's driver's license to be suspended for six months if there are over 21 years of age and one year if they are under 21 years of age.  I realize that most felony admonishment forms cover this possibility as do misdemeanor admonishments, but for some reason it really makes an impression when a judge tells someone that from the bench.

The reason someone should keep this in mind is that if they are caught driving while their license is suspended they may be arrested.

The Martinez Law Firm: http://www.martinezlawhouston.com.

The Harris County Distict Attorney's Office Welfare Fraud division needs to change its policy.

I have mentioned before that the Harris County District Attorney's Office is changing drastically next year.  Administratively, many changes have already been made.  Murray Newman has commented about the changes in his blog.  Moreover, fellow Houston Criminal Attorney, Mark Bennett, posted the new flow chart in the comments section.  Many more changes are rumored to be coming early next year.  I hope that one of the newest changes that need to be made are how the Welfare Fraud division handles their cases.  Carl Hobbs, one of the most tenured prosecutors at the DA's office, has been the head of  this division since I have been a lawyer.  While I enjoy Carl as a person I dislike how his policies have not shifted in years.  During these hard financial times the DA's office needs to re-evaluate if further crippling defendants is just.  Typically, the person charged with welfare fraud is as follows:  single mom, three to four children, limited education, and struggling financially for years.  The struggling mother is receiving welfare and finds a part time job for a while that assists her with paying the bills, but does not get her head above water.  Later, when she reports to the welfare office she fails to report that she has found a new job.  Finally, a random investigation by the welfare office discovers her omission and charges are filed.

While I do not condone what the single mother does, other options should be available to her.  For example, the welfare fraud division has a steadfast rule that they will only offer felony deferred adjudication or a misdemeanor time served offer if the poor mother pays back the funds she was over paid, within forty days.  The welfare fraud division never considers a dismissal of the charges or a misdemeanor deferred adjudication if the money is paid back sooner.  They need to see that justice would be better served if they offered some other options.  They should have a standard policy of contacting the potential defendant to inform them that they have thirty days to pay back the money before criminal charges are filed.  If charges are filed they should give them the opportunity to get a misdemeanor deferred adjudication.  The welfare fraud division needs to see that the children are the ones being hurt by having their mother receive a conviction for theft or being on deferred adjudication for a felony.  The theft conviction would eliminate a lot of job opportunities for her.  Moreover, a felony deferred adjudication is not a conviction, but that means that for a minimum of two years she would be on probation, and must wait longer before she is eligible for a motion for non disclosure.

Your DWI probation can not be cleared from your record

I am frequently contacted by someone wanting to clear their old DWI conviction from their record.  I dislike telling people that despite what their lawyer told them ten years ago their probation for DWI is not eligible to be cleared from their record.  I think that some people look at their criminal record like their credit report.  They are under the assumption that after a certain number of years the charges come off some way and if they contact the right attorney they can make this happen.

The only way to have your DWI cleared from your record is by previously having your case dismissed before going on probation, or going to trial and being found not guilty by a judge or a jury.  Lastly, if your DWI was so long ago that you received a deferred adjudication you may qualify for a motion for non disclosure.

Your facebook account could be detrimental to your defense.

As a criminal defense attorney in Houston, I am amazed how much information I can gather on a potential witness via the Internet.  Their facebook account reveals a lot about them.  They make comments regarding all sorts of subjects.  Sometimes they even post stupid comments regarding the case that they are the alleged victim and/or witness.  Nevertheless, facebook is a double-edged sword.  My clients have been burned with what they have written in their facebook and the pictures that they have posted.  That is why I tell all my clients now to "clean up" or delete their facebook accounts before a prosecutor uses it against them at a punishment hearing or at trial.  For example, a probation officer may see that you posted that picture of you and your buddies drinking at a party that you tagged and pass it along to the judge.  This could be grounds for your probation to be revoked.

The Martinez Law Firm

Smile...The guardian interlock is taking a picture of you!

Houston, Harris County, Texas criminal courts are using another device against repeat DWI offenders.  A second time DWI offender is required to install a guardian interlock device while on bond awaiting the resolution of their case even if they are innocent of the new charges.  The guardian interlock device is a mechanism similar to a breathlyzer which is installed in a vehicle's dashboard. Before the vehicle starts, the driver must breathe into the device.

A more advanced interlock device is now on the scene that takes a picture of the person blowing into the device. Thus, a record is made of whoever is blowing into the machine.  The maker claims to be fool proof, but I doubt that since we have seen so many false positives with the regular interlock device over the years.  More importantly, are other drivers allowed to use the vehicle without a picture being on file?

Contact The Martinez Law Firm to discuss your case or visit our website for more information. 

The Unknown DWI Cost in Houston,Texas

As a DWI attorney in Houston I dislike having to tell my clients abut all the hidden costs of a DWI. Everyone knows about the fines and court cost that are associated with a DWI conviction.  What most people do not know about are the surcharges imposed by DPS if someone is convicted of DWI.  Also, a person's automobile insurance rates are likely to go up and their credit rating will be negatively impacted.  Even life insurance rates are harder to obtain after a DWI conviction.

 Thus, it is important to hire a lawyer that is experienced with DWI defense.  It does not matter if you are charged in Houston, Conroe, Friendswood, Sugarland, Missouri City or Richmond the consequences and cost are all the same.  If you like to talk to me about your DWI case call The Martinez Law Firm at(800) 724-1876 for a free consultation.

Judge Cosper will be missed...

The recent Democratic landslide in Harris County, Texas claimed many fine judges and I am sure it will be ushering many fine ones as well, but in my opinion Judge Caprice Cosper will be missed the most.   She is widely regarded as the fairest judge at the felony level by both sides of the bar.  Every attorney knows that she would listen to their argument before reaching her decision.   No matter what type of legal question arises she is the first looking up the answer even if she knows the answer before she starts looking.  She even goes the next step and shares with you the pertinent law or case that applies. 

She will be missed most by the defendants in her court that are truly trying to overcome their drug addictions.   Judge Cosper's wants every one of her probationers to succeed.  She understands the fighting addiction is difficult and encourages them to continue battling their demons despite the odds against them.  My hope is that newly elected Judge of the 339th District Court, Judge Maria Jackson, seeks her guidance when dealing with this issue so that she can be as influential in a defendant's life.

A recently elected Houston, Texas judge hopes to bring an unique perspective to the bench.

Kevin Fine recently elected Judge of the 177th District Court of Harris County, Texas hopes to provide a fresh perspective to the bench.   I doubt many sitting judges in the country have such a remarkable story as being crippled by drug addiction and coming back from that to win a county wide election.

As a judge he will be able stare into the eyes of a defendant in his court and candidly tell them that drug abuse can be beaten.  This is vital in a felony court because so many of the defendants are drug addicts and need the hope that the "system" wants them to succeed.  On the other hand, he will be able to recognize the ones that are not ready to overcome their addiction.  He hopes to put this insightfulness to work immediately, and later assist with the "drug court" of Harris County.

While I do not know Kevin Fine personally, all of my dealings with him have been professional and courteous.  He also seems to be knowledgeable about criminal law. I look forward to seeing him grow as a judge. He is going to be a judge that is going to think "outside of the judicial box."

The pitfalls of a DWI when having a commercial driver's license in Texas.

Most people know their Texas driver's license will be suspended if they blow over the legal limit of .08.  For a first time DWI offender the suspension period would be for 90 days in that instance.

However, the Texas legislature has made it stricter for someone with a commercial driver's license.  A person who holds a commercial driver's license will lose their driving privilege for a period of one year if: (a) they have been convicted, for the first time, of driving under the influence of alcohol or narcotics; (b) they refuse to submit to a test to determine the level of alcohol in their body; (c) if their blood, breath or urine test determines there was an alcohol level of .04 or more while operating the commercial vehicle in a public place; or (d) if there was an alcohol level of .08 or more while operating a motor vehicle (not a commercial vehicle) in a public place.

Since there are several ways someone may lose their commercial driver's license it is in the person's best interest not to drink at all while driving their commercial vehicle.  Even if they are not driving their commercial and later found not guilty of DWI their license may still be suspended if they blew over .08.  There is just too much at stake for someone that needs their commercial license to make a living to drink and drive in any circumstance.

The Martinez Law Firm

May I get an Expungement or a Motion for Non Disclosure

As a Houston Criminal Lawyer I get asked this question routinely..."what is the difference between an expungement and a motion for non disclosure?"  This is like comparing gold and silver  Both are precious metals, but one is more sought after and harder to obtain.  Similarly, an expungement is more sought after and much harder to get then a motion for non disclosure.

First, you are only able to get an expungement if your criminal case was dismissed.  There are essentially two ways that your cases are dismissed.  A prosecutor may choose to dismiss your case or a grand jury may refuse to indict your case.  Most people believe that once their case is dismissed the case  is expunged.  This is incorrect.  In fact, once your case is dismissed you must wait until the statute of limitations has expired.    Once the statute of limitations has expired you are able to file the expungement petition with the local district court of the county where the case was heard.

If you are found not guilty at trial your case is typically expunged automatically by the court.  Your trial attorney should explain this process to you.  Our firm provides this service at no additional cost to you.

The least common way that people get their cases expunged is after successfully completing  a class "c" deferred adjudication.  Again, you must wait until the statute of limitations has expired to file for an expungement of your criminal arrest.

The best thing of getting the expungement is that you can legally state that you have never been arrested.  Your record is wiped clean!!!

Do not let your past haunt your interviews.

Conversely, you may get a motion for non disclosure even if your case was not dismissed.  The only way to qualify for a motion for non disclosure is if you have successfully completed a deferred adjudication.  Most misdemeanors qualify for a motion for non disclosure immediately.  There are some misdemeanors that are ineligible for a motion for non disclosure.  The most common misdemeanor that is ineligible for a motion for non disclosure is the crime of family violence assault. 

Similarly, most felony cases may be eligible for a motion non disclosure, but you must wait at least two years after completion of the deferred adjudication.  There are lot more felony crimes that ineligible for a motion for non disclosure.  For instance, any crime that involves sexual registration would be ineligible for a motion for non disclosure.

Once the motion for non disclosure is granted by the court it keeps the general public from discovering your criminal history.   This allows a lot of people better job opportunities, better credit, and rent an apartment . 

Despite having a motion for non disclosure granted law enforcement and other government agencies will have access to your criminal history.  Regrettably, this prevents a lot of people from obtaining or keeping  those type of jobs. 

If you need assistance with clearing your record in Houston, Harris County, Texas please contact our law firm at (713) 242-1779 or visit our website.

Clearing my criminal record...

Since I am criminal defense attorney in Houston, Texas almost daily I get some form of the following question… I got probation a while ago and I want to know how I can get it off my record. First, it must be determined what type of probation you received. There are two types of probation in Texas. “Regular Probation” is a conviction and can not be “cleared” from your record. Second, some deferred adjudications may be “cleared” from your record. The instrument used to “clear” a deferred adjudication from your record is called a Motion for Non Disclosure. Some deferred adjudications may be “cleared” immediately after sucessfull completion. Others may take as long as five years and some are never eligible for a Motion for Non Disclosure. Please keep in mind that most government agencies will still be able to see that deferred.

There a lot of attorneys that tell their clients that a deferred adjudication is not a conviction. This is correct, but anyone with access to public records will find your deferred adjudication until you have your Motion for Non Disclosure granted by a court. Therefore, if possible get your Motion for Non Disclosure filed as soon as possible, if you are eligible.

If you need assistance with clearing your record in Houston, Harris County, Texas please contact our law firm at (713) 242-1779 or visit our website at http://www.martinezlawhouston.com.