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.

Collin County Writ Bonds

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

Need a Writ Bond?  Need an Attorney Bond?

If you have a friend or a loved one that has been arrested in McKinney, Plano, Frisco, or some of the smaller municipalities in Collin County, the jail staff may have informed you that you need a writ bond or attorney bond. I can help you get the writ bond filed and have your friend or family member released from the jail.

What’s Happening?

To get out of jail a person first need to have a bond set, which is done by a judge. In larger counties, such as Dallas, the jails have 24-hour magistrate judges that set bonds as soon as the jail cells begin to fill. In Collin County, the judges set bonds only in the morning, not 24 hours a day. So, if a person is arrested for shoplifting in Frisco at 2 p.m., they have to wait until 9:00 a.m. to have a bond set. The only way to get someone out of jail in this situation is have an attorney file a writ bond. A writ bond will only set a bond on some misdemeanor cases.

What is a Writ Bond?

A writ bond (a writ of habeas corpus-meaning produce the body) is an instrument that will trigger an immediate cash bond for most misdemeanor arrests in Collin County where individuals have not had a bond set yet. The cash bonds will be $350 for Class B misdemeanors and $500 for Class A misdemeanors and all DWI misdemeanors.

Writ Bonds will work for release in most misdemeanor cases:

Class B Misdemeanors

Class A Misdemeanors

These are usually DWI, theft, and minor drug possession cases

Writ Bond will not work for the following cases:

Class C Misdemeanors—specifically traffic tickets

Felony cases

Family Violence

Assault

If you have been told you need a writ bond call, 214-402-4364.

Top 5 Mistakes People Make When Arrested in Dallas and Collin Counties

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

1) Talking

Usually immediately following an arrest comes an investigation. Remember always that a person charged with a crime has the right to remain silent. Giving an investigator details about the alleged crime may ultimately hurt their case for a variety of reasons. For example, due to the emotional nature of the event a person may say something they don’t necessarily mean that can hurt them in the long run for being taken out of context, or the person may admit to something that they did not do. Not matter how much a person thinks-“I got this” they don’t.

2) Not consulting with an attorney

Things will happen quickly in a criminal investigation. Having competent legal counsel by your side from the beginning will assure that the arrested person’s rights are protected and vital evidence is saved. For example, in a assault case, the arrested person might actually be the victim instead of the aggressor and the person can provide evidence of it in the form of injuries they sustained. A competent attorney will make sure those injuries are documented in photographs before they are healed.

3) Ignoring the case

Being arrested is a humiliating and horrible experience. But, you can’t sit by and think it will go away by itself. If left alone, the situation will worsen significantly because the District Attorney’s office will not ignore the case. The DA has an aggressive unit of prosecutors that will want to seek the highest punishment available against a person charged with AFV.  The prosecutor is playing with house money and they want to get a conviction. The longer a person waits the more rights and opportunities are lost. Before long, the person will have painted themselves into a corner with little or no options available.

4) Making a quick decision

As with any decision for a defendant involved in a criminal case, speed hurts. Usually rushing to get a bad memory behind you can be a very bad strategy for a criminal case. Attitudes regarding the arrest can change over time and usually the best outcomes occur deep into the defense of a case.

 

5) Don’t Panic

An arrest for any crime is an extremely traumatic event. A person has stress over concerns for their spouse, children, job, and anxiety from fear of the unknown. I understand this and will provide you with as many options for your case as we can under the circumstances.

What You Need to Know About Assault Family Violence Charges in Collin/Dallas Counties

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

What is Family Violence?

Family violence as defined under the family code is “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.” Tex. Fam. Code § 71.004.

Why do I need a lawyer for my AFV case?

An affirmative finding of family violence (AFV) on your record will drastically change your life. This type of case should be taken seriously and defended aggressively considering the impact of a negative outcome can be incredibly far-reaching.

Why am I playing with fire if I represent myself?

In a criminal case, the AFV will be used as tool by the State to enhance an assault charge. Taking an AFV on your record will cut your rights as a U.S. citizen cut in half.

Also, you can never seal your criminal record even if you successfully complete deferred adjudication probation on a case involving family violence. The prosecutor won’t share this piece of information with you if you are representing yourself.

I still don’t understand….what are the consequences of an AFV conviction?

  • You can never be named as the “managing conservator” of a child in any divorce action or action requiring the placement of a child.
  • You can never adopt a child under Texas law.
  • You can never posses or transport a firearm or ammunition under federal law.
  • Moreover, if you have been convicted of AFV, if, at any time in the future you are charged with an assault against a family member or a member of your household or a person who qualifies under Texas law as a person with whom you have a “dating relationship”, that assault can be filed as a third degree felony offense regardless of the degree of physical injury.

Will the case go away if the victim does not want to press charges?

No, the State of Texas will still go forward with the case even if the victim does not. The State will subpoena a reluctant victim to trial to testify and any other witnesses to alleged assault.

What You Need To Know About The Deep Lung Device/Ignition Interlock in Collin County

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

To start with, an Ignition Interlock or Deep Lung Device (DLD) is a portable machine that is installed on the vehicle to prevent the car from starting if it detects alcohol in the driver’s system. In order to start a vehicle with a DLD, the driver must blow into the DLD and the driver’s blood alcohol concentration (BAC) must be below .030. As long as the driver’s BAC is below .030 the car will start. The DLD also requires the driver to blow into the machine every 20 minutes while operating the vehicle, or the car will shut down. Having a deep lung device on your vehicle is a rude awaking.

If person accused of DWI is released from jail via a writ bond, a mechanism in Collin County that a allows a person’s bond to be set if they have not seen a magistrate judge, that person will have a hearing before a Collin County Court At Law judge within 10 days to determine whether a DLD will be installed as a condition of bond. At the hearing the judge will consider:

  • The person’s driving record and see if there have been any prior alcohol related offenses;
  • Has there been an accident;
  • Is the person’s blood alcohol level above a .15; and
  • Is this a person’s second DWI offense

Even if you have never been in trouble before, DWI consequences can be political in nature. With this being the case, judges are more inclined to have the DLD installed as a condition of bond out of necessity for public safety.

If the person’s blood alcohol content (BAC) is above a .15, or this is the person’s second DWI, Texas law requires that the judge require an installation of a DLD. If there was an accident, the judge certainly has discretion to order the installation of the DLD if he/she it is in the best interest of the public.

If a DLD has not been installed as a condition of a person’s bond, it may be added later as a condition of their DWI probation. For example, if a person’s BAC is above .15, Texas law requires a DLD to be installed on the person’s vehicle for at least half the length of their probation. Also, in some situations, a DLD is required as a condition for the person’s occupational driver’s license.

The expense of a DLD adds up as well. The device costs about $100 to install and about $80 a month after that. These costs are approximates as they change over time. Also, a person is required to return to the installer at least once a month to have the device calibrated. Failure to have the device calibrated could result in forfeiture of the person’s bond, which means a return trip to jail.

How Social Media Can Hurt You in a Criminal Case

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

If you have a pending criminal case, or if you believe you may be under criminal investigation in Texas, you have to appreciate just how powerful social media sites like Facebook and Twitter can be on the outcome of your case (or investigation) before it even gets started.

Social media first became popular to young people years ago and now just about everyone is connecting online in some way. You can usually find out some basic information about a person you have just met by searching their name on Facebook. Prosecutors and investigators understand this and will do the same thing. What does you Facebook wall or Twitter page say about what type of person you are?

To help keep yourself away from potential social media legal issues, you must first understand how social media posts can impact you in criminal cases.

It’s possible the words you write and pictures or videos you post can prove damaging in criminal cases. Although it may seem harmless at first, these communications become important when posts demonstrate you did or said something at the time it was posted. The quote will be there good or bad with no context. For example, if you post on Facebook how angry you are at a person and the next day you are in a fight with them and get arrested for assault, the State may use your quote to show your state of mind to try to prove you were the aggressor. Here are some other examples I commonly see in my practice

  • Descriptions and announcements of behavior
           Threats, anger, depression, “wanting to get hammered”, bragging about crimes, etc.
  •  Descriptions or photos of drug use, paraphernalia, or other instruments of criminal activity
          Drugs, illegally obtained firearms, and other illegal weapons
  • Statements or images that place you at a given location
         Checking in at bars (or multiple bars) at a specific times, or pictures of drinking—usually not good evidence in DWIs cases-especially if you are bond for a DWI      charge.
  •  Images or descriptions that implicate you in more serious crimes or illegal activity
         Pictures of you with large amounts of drugs, stolen property, or firearms.

Although you may believe these thoughts or pictures are protected from public view based on what you have selected in your account’s privacy settings; however, the settings guarantee nothing. Facebook and other platforms actively participate with law enforcement to reveal “protected” information. Never assume information you put online isn’t accessible to those who might be investigating you for evidence of criminal activity.