The State is Trying To Revoke My Probation–What Can I Do About It?

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

Probation is technical and expensive. To be successful on probation you have to be organized, disciplined, and have a little bit of luck. People complete their probation obligations every day, but for many the road through probation is hard.

For example, if you plead guilty to a possession of marijuana charge in Collin County Texas and were put on probation in the fall of 2015. The deal you took was 90 days jail probated for 12 months and a $600 fine plus court costs. The terms and conditions of your probation were to take a substance abuse evaluation, complete a drug class, submit to random drug checks, and complete 45 hours of community service.

How the Revocation Process Begins

Fast forward to the summer of 2016 with 3 months to go on probation. You forgot to report to your probation officer in May, and you are also behind on your community service hours and payment of your fine. You meet with your Collin County probation officer in June and the first thing he hits you with is a drug test—which you fail because it was your best friend’s birthday the week before. At this point, the probation officer believes you are no longer a good candidate for probation and files a motion to revoke your probation based on the mistakes you made in May.

Once the motion to revoke is filed, a warrant will be issued for your arrest. You will have to turn yourself in, or you will be arrested for the outstanding warrant, which usually happens at an inconvenient time. If it is a motion to revoke misdemeanor probation, you will be entitled to a bond, so you will have the ability to be bailed out.

What Happens Next?

The next step will be going to court. This process will mirror the court appearances you had with the original case—you will have a first appearance that will allow your lawyer to take a look at the motion to revoke and the State’s punishment recommendation. Yes, get a Collin County criminal lawyer if this is happening in Collin County. A motion to revoke is a tricky process and I highly recommend you get a lawyer on board to represent you considering the State will most certainly take the position that you have already been given a chance and don’t deserve a second one. It will be very difficult for you by yourself to argue otherwise to the prosecutor.

What Happens to Me?

On a typical motion to revoke, you will either be extended on probation, or you will receive a jail sentence and be done with probation. If there are defenses to the allegations of the motion to revoke, the lawyer may be able to get the motion withdrawn. If you do not like the State’s recommendation you can set the motion to revoke for hearing and make the State prove-up the allegations in their motion. Here’s the problem—take the example above—the State need not prove up every allegation in the motion to revoke to win, the State only needs to prove up one allegation to win the motion. If the State can prove you failed to report in May, the State has won the motion to revoke. As you can see, there is very little room to maneuver if your probation is being revoked for legitimate allegations.

After reviewing the facts and negotiating with the State, a lawyer can advise you of your chances of winning the motion to revoke at a hearing. Or perhaps buy you some time to get caught up on the items the State wants to revoke you on to get your probation extended or the get the motion dismissed outright.

A motion to revoke your probation will create a difficult time for you. You should have competent legal counsel review your case to put the most options on your table based on the specific facts of your case.

What is K2 and is it Legal in Texas?

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

The generic definition of K2 is that it is a psychoactive designer drug made up of natural herbs that are sprayed with synthetic chemicals. When the mix is done correctly, the drug mimics the effects of cannabis (marijuana). The mixture is best known on the street as K2 or Spice. The goal of both of these products is to mimic, not copy the effects of cannabis. However, K2/Spice may include synthetic cannabinoids, which has a similar effect on the body as cannabinoids naturally found in cannabis, such as THC. These products first became available in the early 2000s so they have been out about 12 years.

Research is now showing that these products might be trouble for the consumer. In short, the studies that are coming available are focusing on the role of synthetic cannabis and psychosis. In some of the case studies, the psychosis and be quite long term. The synthetic cannabis may also trigger a chronic psychotic disorder among certain individuals such as those with a family history of mental illness.

As I have mentioned in the past K2 is not legal in Dallas or Collin County or anywhere else in Texas. In 2011, the Texas Legislature made K2/Spice illegal in Texas. The same punishments apply to K2/Spice that apply to possession of marijuana charges.

If you find yourself facing possession of K2/Spice charges, you should contact a Collin County criminal lawyer to help you defend your case.

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.