Can I Be Arrested If I Have Prescription Medication Without the Prescription?

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

YES! However, if you can provide a copy of the prescription (and show it was valid at the time of the arrest), the case against you will most likely be dismissed. A valid prescription is a defense to the prosecution of the case, but it will not stop the arrest if the prescription is not on your person.

If a person is carrying prescription medication without the prescription, they can be arrested if they come in contact with the police. Usually, I see these charges in connection with being stopped for another reason and the medication is either in plain view or in the person’s pocket. Be careful when you are driving around with your prescription medication.

Another scenario I commonly see is where a friend or family member gives an individual leftover prescription medication for an ailment. If this is the case and the person gets arrested in possession of someone else’s prescription medication, then they do not have prescription defense to the prosecution of the offense.

What Is a Drug Free Zone?

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

Common drug free zones you come across in Texas are schools. Generally possession of a controlled substance or marijuana in a drug free zone (DFZ) is defined as being within 1000 feet of public or private elementary, or secondary school, or daycare center. As you can imagine, these types of schools are scattered throughout Dallas and Collin counties.

There are two major consequences of possessing a controlled substance in a DFZ. First, possession in the DFZ increases the punishment range one degree. For example, possession of marijuana of two ounces or less is a class B misdemeanor, however; if a person is caught possessing the same amount in a DFZ, it becomes a class A misdemeanor. Second, if the person is sentenced to the penitentiary for possession in a DFZ, that person will not receive any good conduct time for the first 5 years of incarceration. For example, if the person is sentenced to 5 years in the Texas Department of Corrections for possession of cocaine in a DFZ, the person will have to do the whole 5 years.

As you can see, if you are caught possessing a controlled substance in a DFZ, the penalties can be severe. If you are facing such charges, you should consult a Dallas or Collin County Criminal Lawyer that is familiar with the law and knows how to attack the facts regarding the DFZ.

Texas Has Tougher Penalties on First Offense DWIs Where A Person’s BAC Is Above 0.15

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

Prior to September 1, 2011, a first offense DWI in Texas, regardless of the person’s blood alcohol concentration (BAC), was punishable by a fine that would range from $0 to $2,000 and from 72 hours to 180 days in jail (which could be probated).

The punishment listed above is still good law on a DWI first offense, but only if the person’s BAC is below a 0.15. For reference, a 0.08 BAC is considered legally intoxicated in Texas. Following the Legislative changes that took effect on September 1, 2011, if a person’s blood alcohol concentration is above a 0.15, the punishment range is enhanced to a fine from $0 to $4,000 and from 0 days to 1 year in jail (again, which may be probated) regardless of whether it is a first offense or not.

The 0.15 BAC and above enhancement also has significant impact on the surcharges that DPS will levy on a person following a DWI conviction. Specifically, if a person’s BAC is below a 0.15, the standard DPS surcharge for having a driver’s license following a DWI conviction will be $1,000 a year for a period of three years. If a person’s BAC is above 0.15, then the surcharge jumps up to $2,000 a year for the three-year period.

If you are facing a DWI charge, you should contact an experienced Collin county criminal lawyer to help you defend your case.

What If The Police Did Not Read Me My Rights!

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

Easily, the number one question I am asked when I consult with someone on a criminal case is-“What if the police did not read me my rights?” Frankly, the answer varies with every factual situation and how exactly the criminal investigation progressed. There are certain procedures that police officers are supposed to follow regarding Miranda rights. Below are some commonly asked questions regarding Miranda rights and about how the rights are triggered:

Q:  At what point are police supposed to read Miranda rights to an individual?

A:  After a person has been officially taken into custody (detained by police), but before any interrogation takes place, police must inform the individual of their right to remain silent and to have an attorney present during questioning. A person is considered to be “in custody” anytime they are placed in an environment in which they do not believe they are free to leave. Example: Police can question witnesses at crime scenes without reading them their Miranda rights. If during the process, a witness implicates himself or herself in the crime during that questioning, their statements could be used against them later in court.

Q:  Can a police officer question an individual without reading them their Miranda rights?

A:  Yes. The Miranda warnings must be read only before questioning an individual who has been taken into custody.

Q:  Can police arrest or detain an individual without reading them their Miranda rights?

A:  Yes, but until the person has been informed of his or her Miranda rights, any statements made by them during interrogation may be ruled inadmissible in court.

Q:  Does Miranda apply to all incriminating statements made to police?

A:  No. Miranda does not apply to statements a person makes before they are arrested. Similarly, Miranda does not apply to statements made “spontaneously,” or to statements made after the Miranda warnings have been given.

Q:  If you first say you don’t want a lawyer, can you still demand one during questioning?

A:  Yes. A person being questioned by the police can terminate the interrogation at any time by asking for an attorney and stating that he or she declines to answer further questions until an attorney is present. However, any statements made up until that point during the interrogation may be used in court.

If you have been arrested in the metroplex, contact a Collin County Criminal Lawyer or  Dallas County Criminal Lawyer for assistance.

DWI Consequences–The Victim Impact Panel

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

If you have been convicted of DWI and are placed on probation, you will have conditions of probation you will have to complete to be successful while on probation. As part of the probation, you will discover that you have to pay a fine, pay court costs, make a small donation to your local crime stoppers fund-around $25-$30, which are normal conditions for most every type of criminal case probation. In addition to these conditions, DWI probation has a few special conditions required by law such as, taking a DWI education class, a substance abuse evaluation, depending on the facts of your case perhaps a deep lung device will be required to be placed on your vehicle, and take a victim impact panel class (VIP).

I get a lot of questions regarding the VIP class, so here is the down low. The VIP is an awareness program for drivers that have been convicted of DWI. Anyone can attend the VIP, but it is mandatory for those who have been convicted of DWI. The “Panel” is a presentation by those who have lost family members or friends to drunk/intoxicated drivers. The presentation is not supposed to be confrontational or judgmental in nature. However, the class is a reality check to those attending as the Panel presenters relate how their own lives have been changed forever by the actions of drunk drivers. The Panel focuses on real life stories of trauma, emotional/physical suffering/pain, financial loss, anger, and frustration—emotions commonly experienced by innocent victims following an alcohol or drug related vehicle wreck.

The class serves two missions: 1) it benefits the attendees in that it gives them a moment of pause to consider the severe consequences of driving while intoxicated and may be the first step to recognizing a possible addiction the person may have and getting help; and 2) it benefits the victims in that telling their stories and sharing their stories may help their healing process and hopefully experience something positive from their devastating experience.

The VIP takes about 2.5 hours to complete and costs about $30.

Can I Get a DWI Because of Marijuana or Other Drugs?

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

Yes. A person can be charged and convicted of DWI in Collin or Dallas Counties even if they do not have a blood alcohol content (BAC) level from a breath or a blood test.

To win the case, the State must prove the person was intoxicated at the time of driving and they can do this numerous ways. In Texas, “intoxication” is defined as not having the normal use of your mental or physical faculties by reason of the introduction of alcohol, a drug, a dangerous drug, or any combination. Thus, if an individual has lost the normal use of the mental or physical faculties by reason of the introduction of marijuana or any other drug, that individual can be charged with DWI. The roadside field sobriety tests are the tools the State uses to gather the majority of its evidence of loss of normal use.

In addition, to the DWI charge, if the police find any marijuana or other drugs in the vehicle or on a person, the individual will most likely be charged with possession. Any arrest is a serious matter and you should consult with an experienced attorney on how to proceed with your case.

Can The Police Search My Car In Texas If They Just Smell Marijuana?

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

YES! In Texas, the odor of burned marijuana gives the police the probable cause necessary to perform a legal search. The situation usually presents itself during a traffic stop when an officer smells marijuana through the open window while speaking with the driver. The odor of marijuana either fresh or faint is a trigger point for the police to search a vehicle without first obtaining a warrant.

Citizens have much less 4th Amendment protection against an illegal search and seizure when they are in their vehicles. The main rationale is that cars are mobile, and they could flee before an officer can get a warrant from a judge to search the vehicle. Another thought is that since cars are regulated by state laws, and are also on public streets, drivers have a reduced expectation of privacy compared to the privacy in their homes. In short, your vehicle is NOT the same thing as your home and the police can search it much more easily.

What’s Deferred Adjudication in Texas?

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

What is Deferred Adjudication in Texas?

On certain criminal cases you may be eligible for deferred adjudication as part of a plea agreement. What’s different with deferred adjudication is when you plead guilty, the judge does not find you guilty, and as a result (as long as you successfully complete probation) you are not formally convicted of the charged offense. The benefit is deferred adjudication is NOT a conviction and you have to opportunity to seal your arrest record.  A conviction on the other hand can never be sealed or removed from your record.  You get convicted when you have either lost at trial, or agreed to a plea agreement where you plead guilty before the court and the judge found you guilty and you were sentenced.

Am I Eligible For Deferred Adjudication?

Whether a person is eligible for deferred adjudication depends on the offense charged and the person’s criminal history.  There are several offenses where individuals ar e barred by law from receiving deferred adjudication.  Specifically offenses regarding intoxication under chapter 49 of the Texas Penal Code which are driving while intoxicated, boating while intoxicated, flying while intoxicated, intoxication manslaughter, etc. A defendant is eligible for deferred if he or she has been charged with most any other offense.

The next hurdle is whether the District Attorney (DA) will be willing to offer the deferred. The prosecutor assigned to the case makes this decision on a case-by-case basis. Some of the factors the prosecutor will consider are: is it a offense that is eligible for deferred, the defendant’s criminal history, the nature of the crime, was it a violent offense, was a deadly weapon involved, were there any injuries etc. An experienced attorney can help convince the prosecutor to offer deferred adjudication by exposing weaknesses in the prosecutor’s case.

How Can I Seal My Criminal Record?

In most misdemeanor cases, upon successful completion of the probation period, you can move to have the arrest sealed from the general public by filing a petition for non-disclosure. For felonies, you have to wait for 5 years before you move for a non-disclosure. Once the petition is granted, the arrest will be sealed. However, if you have a professional license of some sort, you will not be able to seal the record from those types of employers during background checks.

What Does Proof Beyond Reasonable Doubt Mean in Texas?

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

In Texas, as is the case in the rest of the United States, the government has the burden of proof in a criminal case. What this means is the State of Texas has the burden to prove a Defendant is guilty beyond a reasonable doubt to win a conviction. You may wonder just what is proof beyond a reasonable doubt? Our legislature hasn’t helped the situation by not providing us with a definition.

Proof beyond a reasonable doubt means whatever you believe it means, but is also the highest burden in the land. This all makes very little sense without a background on what the other burdens of proof are.

The lowest burden of proof in our justice system is reasonable suspicion. A police officer must have a reasonable suspicion a crime has been committed in order to stop or detain an individual. Reasonable suspicion is defined as “articulable facts” for example like a person’s taillight is broken on their vehicle. In that situation, the officer has cause to pull the person over for the taillight infraction.

In order to arrest an individual, a police officer needs to hurdle the next legal burden called probable cause. What probable cause means is the officer possesses sufficiently trustworthy facts to believe that a crime has been committed. An example here is after stopping someone for speeding, the officer smells alcohol on the person’s breath and conducts field sobriety tests on the person—which they fail—and the officer arrests the person because the officer believes he/she has probable cause the person was Driving While Intoxicated.

Preponderance of the evidence is the next level of proof and usually comes in to play in a civil lawsuit for money damages such as a car wreck case. What’s interesting about preponderance of the evidence is this burden gives us a picture of the scale of proof because it is defined as 51%. For example, if you can get the football across the 50-yard line on a football field you win the game.

This brings us to the second highest burden of proof is which is clear and convincing evidence. Clear and convincing evidence is defined as a strong conviction or belief. This is the burden that Child Protective Services has to meet in order to remove children from a household. It also the same burden of proof that has to be reached to turn off a person’s life support equipment in the hospital.

Most people would require a high degree of certainty before he or she would be willing to declare that a child should be removed from a family home or that a person’s life support equipment be turned off. Proof beyond reasonable doubt in a criminal matter is even higher than that! Remember there has to be “proof” beyond reasonable doubt. Proof is evidence and the government must have this evidence.

Perhaps our legislature will one day provide us with a definition of proof beyond reasonable doubt. Until that happens it remains undefined, yet it is the highest burden in the land.

Top Questions and Answers Regarding Marijuana Possession in Collin/Dallas Counties

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

Possession of Marijuana FAQ

 Here are some answers to questions I often hear regarding possession of marijuana cases here in Texas.

Q:        What does possession really mean?

A:        The Texas Penal Code Section 1.07(39) defines “possession” as “actual care, custody, control, or management.”  In other words, the State has to prove that someone was in actual care, custody, control, or management of the marijuana not just that someone was merely in close proximity to the drugs. The State usually does this through “affirmative links” or how they can link the drugs to you through common sense. For example: was the marijuana in your pocket?—if so, that an easy affirmative link to you possessing the drug. If it is in a car, is it your car? If so, where in the car?–the center console where it would be closer to you, or stuffed in the back where a passenger may have put it without your knowledge?

Q:        What exactly is considered marijuana?

A:        The legal definition of marijuana is defined in the Texas Health and Safety Code. Marijuana is in its own category and for the purposes of marijuana possession, is defined as any Cannabis sativa plant, whether it is growing or not, the seeds of the plant and any preparation of the plant such as a joint or a package containing dried and shredded buds.

Q:        How serious is a possession of marijuana charge?

A:        It depends. But yes, marijuana possession here in Texas is still illegal and a crime. Possession of marijuana is at least a misdemeanor criminal charge under Texas law. Though most minor marijuana possession cases can be dealt with effectively, more serious charges with larger quantities or intent to sell are extremely serious charges.

Q:        What are the laws and penalties regarding marijuana possession?

A:        As follows:

Weight Classification Penalty
2 ounces or less Class B misdemeanor Not more than 180 days in a county jail and/or a fine of not more than $2,000

 

More than 2 ounces, but less than 4 ounces Class A misdemeanor Not more than 1 year in a county jail and/or a fine of not more than $4,000

 

More than 4 ounces, but less than 5 pounds State jail felony 180 days to 2 years in a state jail and/or a fine of not more than $10,000

 

More than 5 pounds, but less than 50 pounds Third-degree felony 2 to 10 years in a state prison and/or a fine of not more than $10,000

 

More than 50 pounds, but less than 2,000 Second-degree felony 2 to 20 years in a state prison and/or a fine of not more than $10,000

 

More than 2,000 pounds Enhanced first-degree felony 5 to 99 years and a fine of not more than $50,000

 

 

Q:        Does having a possession of marijuana conviction on my record affect my driver’s license?

A:        Yes, your driver’s license can be suspended for up to six months following a conviction on any violation of the Texas Controlled Substances Act, which includes possession of marijuana.