HIV Status Can Be Used to Enhance Criminal Penalties in Texas

By Bo Kalabus

Office: 972-369-0577;

Texas does not have a criminal statute specifically addressing HIV exposure or transmission as a crime; however, people living with HIV (PLHIV) have been prosecuted for HIV exposure under general criminal laws, including attempted murder and aggravated assault. For example, Texas’s aggravated assault statute makes it a felony of the second degree to cause serious bodily injury to another or to use or exhibit a deadly weapon in the commission of an assault. Generally, in Texas a felony of the second degree carries a punishment of a minimum of two up to a maximum of twenty years in jail and a fine up to $10,000. Texas courts have found that the seminal fluid of a PLHIV may constitute a deadly weapon for the purposes of conviction under the aggravated assault statute, such as a vehicle may constitute a deadly weapon in a vehicular manslaughter case. In fact, numerous prosecutions in Texas have led to the incarceration of individuals whose alleged criminal conduct presented no known risk of transmitting HIV. Crimes involving aggravated sexual assault-in which a person engages in various sex acts without someone’s consent or with a child while using or exhibiting a deadly weapon is a first-degree felony, punishable by five to ninety-nine years or life in prison and a $10,000 fine. The landmark case for Texas came in 2006 with Mathonican v. State. In Mathonican, the Court of Appeals of Texas found that the seminal fluid of a PLHIV can be considered a deadly weapon in aggravated assault and aggravated sexual assault cases. The defendant in Mathonican was sentenced to 97 years’ imprisonment for sexually assaulting another individual. The trial court held that the defendant’s seminal fluid was a deadly weapon because of his HIV status. The defendant appealed his case, asserting that the deadly weapon finding was erroneous because HIV status should not be considered a deadly weapon. The court found that seminal fluid may be considered a deadly weapon “if the man producing it is HIV and engages in unprotected sexual contact.” The court reasoned a deadly weapon is anything that can be used to cause death or serious injury, and that the “seminal fluid from an HIV positive man is capable of causing death or serious bodily injury to another person when the HIV positive man engages in unprotected sexual contact.” Even if the defendant did not ejaculate or otherwise expose the complainant to HIV, the court determined that the single fact the defendant’s seminal fluid “as used or as intended to be used” was capable of causing death or serious bodily injury supported the deadly weapon finding, even without proof that it did cause harm or had any probability of causing harm. This reasoning suggests that if a PLHIV engages in any unprotected sexual activity, regardless of the person’s viral load or whether the sexual activity poses any possibility of transmission, criminal liability may apply.

Recent Case Wins!–A busy, but productive few months

Bo Kalabus, Criminal Defense Attorney

Office 972-369-0577

Cell 214-402-4364

It has been a very busy fall for me professionally. However, the work has been rewarding because not only have the case subjects been diverse, I have also been able to obtain some great case results for clients–for example:

DWI With Car Accident – Not Guilty Verdict

Assault Family Violence (client was ultimately the victim)– Case Dismissed

Theft of Service – Case Dismissed

Theft – Case Dismissed

Harboring a Runaway – Case Dismissed

Represented a Physician Assistant before the Texas Physician Assistant/Texas Medical Board for unprofessional conduct stemming from a DWI charge. — All charges were dismissed following an Informal Settlement Conference before the Medical Board.

Defended a dog that had bitten an employee at a dog kennel.  The city wanted to euthanize the dog and would not compromise on this in negotiations even though the person that had been bitten did not want the dog killed.  Following a hearing I was able to keep the dog alive and with his owner. ** This case I did pro bono for a friend—I hate to see animals in harms way!

Explaining Texas Gun Laws

By Bo Kalabus

214-402-4364 Office: 972-562-7549

Texas is one of a handful of states that have relatively few gun laws. However, there are still laws in place to protect the public, and you should be aware of them. If you carry a gun or have been charged with a gun crime, you might want to read up on Texas gun laws.

Major Texas Gun Laws

Below, we’ve given you an outline of the major laws in Texas related to firearm possession, as well as how and when you’re allowed to carry:

• Unlawful Carrying of a Weapon – This crime is committed when a person knowingly carries a firearm in a way that is against the law, such as open carrying without a license or carrying a firearm while committing a crime.

• Carrying in Places Where Weapons Are Prohibited – This crime has been committed when a person knowingly carries a firearm onto a property that forbids the presence of weapons, such as certain schools or courts.

• Unlawful Carrying of a Handgun by a License Holder – This crime is committed when a person who is licensed to carry a concealed handgun intentionally displays the handgun in plain view.

• Unlawful Possession of a Firearm – A person commits this crime when he or she is not authorized under Texas law to carry a weapon. This might include convicted felons and certain people under community supervision.

• Unlawful Transfer of Certain Weapons – Intentionally selling, transferring, or leasing a handgun to someone you know is going to use it in the commission of a crime; selling or transferring a weapon to a minor; and selling or transferring to someone who is intoxicated could all be included under this rule.

• Deadly Weapon in a Penal Institute – This crime is committed when a person intentionally possesses or conceals a deadly weapon within a penal institute.

Some gun offenses can be charged as misdemeanors or felonies, depending on the circumstances of the case and your criminal history.  You will need an experienced attorney by your side if you are facing a gun related charge.

DLD Violation Hearings – Consequences and How to Defend Them

By Bo Kalabus
Office: 972-562-7549
Collin County 24 Hour Jail Release 214-402-4364
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. Depending on certain circumstances, such as a high BAC, accident, or multiple DWIs, a person may be required to have a DLD installed on their vehicle as a condition of bond for a DWI arrest. If a person is not driving, a judge may order that the person have a home alcohol-monitoring device they have to blow into at certain times of the day. The providers of the devices send reports to the courts once a month to determine if a person is having alcohol violations.
If you are ordered to have one of these devices while you are on bond for a DWI charge, you certainly have to watch your step. A person is on bond until the DWI case is resolved by going to trial or by taking a plea agreement. It can take several months up to a year from the time of arrest until the case is resolved. The primary condition of a DWI bond is to not consume any alcohol. This can be a harder request for some than others. If a person consumes alcohol while on bond, these devices will certainly catch your actions at some point. If that is the case, the judge will set what is called a DLD violation hearing.
The stakes are high at one of these violation hearings as the judge has the power to hold your current bond insufficient, which means you are immediately taken to jail following the hearing. At this point, the judge can then set a much higher dollar bond amount and/or may add additional conditions such as AA meetings, or adding a SCRAM device—a alcohol/drug monitor attached to the ankle of the person. Depending on the circumstances of the situation the judge may also have you held with no bond, which means you will be unable to get out of jail until your criminal charge is resolved.
I have helped many clients navigate these tricky waters by getting to the heart of the issues the client is going through and developing an action plan to present to the judge. Every situation is different and there is a big difference between a malfunctioning device and a person that is struggling with addiction. If you are having problems while on bond for a DWI charge, give me a call.

The Criminal Charges Against Me Have Been Dropped, Now What?!


214-402-4364-Writ Bond Hotline
Office: 972-369-0577

If you have been arrested for a crime and those charges are later dropped, or refused for prosecution by the District Attorney, that’s great news.  However, you will still need to proactively remove the arrest from your record.

I’ve seen this situation happen in both misdemeanor and felony cases for clients where the police thought at the time they had enough evidence to arrest for an offense; however, after further review, the intake prosecutor believed for whatever reason they could not make the case and refused to accept it for filing or presentation to the Grand Jury.

When the case is refused, the District Attorney issues a drop charge letter to the police agency that arrested the person informing them the arrested person will not be prosecuted by the District Attorney.  It also instructs that if the person has an outstanding warrant due to the charge, then the warrant is to be recalled.  Moreover, if the person has been released from jail on a cash bond on the charge, the bond is to be discharged and the bond money be returned to the person named in the receipt for the bond.

Even though the case has been dropped, the arrest is still on your record until you file for an expunction.  An expunction is a civil lawsuit that will need to be filed to properly clear the arrest off your record.  Even though the case has been dropped, you will have to wait the applicable waiting period to let the statute of limitations run for the offense before moving forward with an expunction.

If you have been arrested for an offense and that charge was later dropped or dismissed, give me a call to discuss your options and make sure the arrest is properly cleared from your record.

What Do I Do If A Police Detective Is Trying to Contact Me?

By Bo Kalabus;
24-hour Jail Release: 214-402-4364

Whether you think you did something wrong or not, your first call should be to me.

When an investigator is reaching out to a person about a crime, it’s a very serious thing. Investigators are very skilled at getting people they are questioning to talk and make admissions about crimes without the person of interest really knowing what they have just done to themselves. It’s an art and they are good.

Investigators usually call a person of interest and convince them to come down to the station to talk to them. Once there, the investigator will set them at ease and tell them they have a right to a lawyer and that they are free to leave anytime—people always seem to forget that part. Then the questioning begins. An investigator is talking to you because they are missing something in their investigation-remember if they had all their evidence, they would not need to be fishing. They may act like they know everything about a case, but it just may be a theory of theirs, and they are bluffing to see if you can give them the piece of information they are missing. It’s high stakes poker, and the investigator has the high cards.

Even if a person does not confess to a crime, sometimes responses to questions don’t make sense, or stories change and this can be just as damaging as a confession. The interview is video recorded, so every grimace, or long pause, or nervous twitch is captured. This video will be played later at trial and can be the State’s best evidence in prosecution of the charge.

If an investigator is trying to contact you, you need to contact me. Once the investigator knows a criminal lawyer represents a person, they will stop trying to contact that person. At that point I contact the investigator and see what they have on the person and see if it is advisable to talk to the investigator or not. 99% of the time its not advisable to the investigator. This is not something you should try to handle by yourself.

Should Pilots Take the Breath Test if Pulled Over for Suspicion of DWI?

By Bo Kalabus;
24-hour Jail Release: 214-402-4364

“Should I take the tests?” is the number one question I get asked in my practice regarding DWI arrests. For people in most professions, my usual answer corresponds with what I believe 99% of criminal defense attorneys think, which is “less is always best”. Simply put, the less evidence there is against you, specifically no field sobriety tests, no breath test, the better the case will be for you at trial. Yes, if you politely refuse the tests you will be arrested, but the end result may be an acquittal at trial due to lack of evidence.

For pilots however, my advice is totally different. For a pilot, especially a commercial pilot who earns a living flying, keeping peace with the FAA is the primary concern. In short, if a pilot refuses a breath or blood test, their license is in serious jeopardy.

Two things will red flag a pilot on a DWI stop and if either of these two events occur the FAA will assume the pilot has a substance abuse problem—even on a first offense. The first is if pilot refuses a breath or blood test and the second is if the pilot has a blood alcohol content (BAC) of over .15 (.08 is the legal limit in most states). The refusal or high BAC send strong signals to the FAA and you just can’t un-ring the bell if it happens.

So, what happens next? With a pending DWI case regardless of the BAC, the next medical examination for the pilot could be a huge shock. The AME will have no choice but to defer the FAA medical application. And that will end the flying until a time when the pilot can get his medical back. The trap door on the medical application is at line 18.v of FAA Form 8500-8, which asks the pilot to report “arrests, convictions and administrative actions”. When a pilot checks that box “yes” following a DWI arrest, the local AME will be required to transfer this application to the FAA’s aerospace medical certification division for further review.

If the medical application is deferred, it’s a long road back for the pilot. At that point, the pilot must receive a substance-abuse evaluation from a recognized counselor (DOT substance abuse professional) in order to be further considered for a medical certificate. This can be a very expensive and lengthy process. An AME cannot perform this evaluation without additional certification by the DOT (not the FAA). This makes the renewal process longer and more arduous.

As you can see, the choices people make can have a huge impact on their careers, especially if you have a professional license on the line, like a pilot. If you want to drink, take an Ubur. It’s just not worth it.

After Dallas Tragedy-Top 5 Things You Need To Know When Pulled Over By The Police

By Bo Kalabus;
24-hour Jail Release: 214-402-4364

In the wake of the recent tragedy in Dallas we must all examine how we interact with police officers if we are stopped for a traffic offense. On a normal day police have very difficult jobs. Usually they are alone and every time they approach a vehicle it is a dangerous situation. However, these are not normal times for the police or us. Tensions for both are at an all time high point. Therefore, we must examine what our actions signal to police when we are stopped. Here are a few helpful tips on how to handle yourself during a traffic stop.

1) Pull Over As Soon As You Can

The longer it takes you pull over the more suspicion this raises to the officer. They are thinking that you may have a reason for wanting to evade them such as having a warrant, or you are buying time to try to hide contraband in the car. This type of situation makes the officer think you might be dangerous and sets the tone for the questioning to come.

2) Pull Over in a Safe Place

It looks really bad if you pull over in a dangerous place, such as pulling to the left median on the Tollway or a major interstate for example. Usually in this scenario it makes the officer have to approach on the right side of the car with traffic flying right by them. This is a very dangerous situation for the officer and again it sets the tone for the questioning.

3) Keep Your Hands Where The Officer Can See Them

Keep your hands on the steering wheel up high where they can be seen or on the window frame while the officer approaches. Nothing puts an officer on point more than movement in the car as they approach. They have no idea if you are looking for your insurance or your trusty .357.

4) Let The Officer Talk First

The officer is going to want the first word. Let them have it and follow the lead. Being interrupted is frustrating for the officer. Don’t make a minor situation worse by being a know it all. The officer is in control.

5) Be Polite

Golden rule time–be polite and courteous. Remember you are being videotaped too. Remember your rights, but stay cool. You can politely refuse to take field sobriety tests and then keep your mouth closed. Don’t make a scene by yelling at the officer asking if you are detained.

If you are charged with a crime, you should contact a competent Collin County Criminal Lawyer to represent you and examine all the possible defenses you could have with your case.

Police Body Cameras Cut Both Ways

By Bo Kalabus;
24-hour Jail Release: 214-402-4364

More and more Collin and Dallas County police agencies are using body cameras these days. Being filmed during a police investigation is not an entirely new concept, as police in-car dash video recorders have been around for quite some time now. However, the police body camera can show much greater detail during a police encounter, which can be both helpful and harmful to defense of a criminal case.

In defending a criminal case, I find for the most part having events videotaped is very helpful. The video recording is the best objective evidence of an event and I would rather have a dash camera or body camera video in a case I’m working on than not. Take a DWI for example, an officer may put in his report that he just witnessed the worst driving ever and that’s why he stopped the vehicle.   But when we review the patrol car video the driving doesn’t look near as bad as the officer described. In fact, the driver may not have violated any traffic law and the officer may not have had an objective reason for pulling the driver over. This type of video evidence will keep the officer from exaggerating his testimony at trial. However, the dash camera can have limitations. Often the footage is grainy and the audio can be muffled.

Police body cameras take the recording to the next level in detail. Take the same DWI example, when the officer goes to the window of the car that body camera will be focused right on the driver’s face. If the driver is impaired due to alcohol and exhibiting slurred speech, bloodshot eyes, or is slow to respond to questions this will be very apparent on the recording. That type of scenario may not play to well for the client. However, if the driver is not obviously impaired and officer exaggerates these details in his police report the video recording will be our best evidence in defense of the case.

The body cameras are also recording all audio. As a result, I can hear the conversations between the police officers when they huddle up to discuss the status of an investigation and the radio calls. Back on the DWI example, if a back up officer arrives and is being briefed by the arresting officer there is no limit to what information I can find out about how they think the investigation is going. This is a great tool in identifying any bias the police officer may have or whether they think the evidence they have is strong or not. Sometimes the officers forget they are being recorded and you would be surprised as to what you hear.

The body cameras are also very helpful in identifying the exact timeline of events and the behavior of both the arrested person and police officer—especially if there is a dispute on any of these issues.

Overall, body cameras are going to be here to stay. My experience with them so far has been very positive in defense of my clients.  If you are charged with a crime, you should contact a competent Collin County Criminal Lawyer to represent you and examine all the possible defenses you could have with your case.

Synthetic Cannabinoids Are Not Only Illegal, But Dangerous

By Bo Kalabus;
24-hour Jail Release: 214-402-4364

What Are Synthetic Cannabinoids?

Synthetic cannabinoids refer to a growing number of man-made mind-altering chemicals that are either sprayed on dried, shredded plant material so they can be smoked, or sold as liquids to be vaporized and inhaled in e-cigarettes.

These chemicals are called cannabinoids because they are related to chemicals found in the marijuana plant. Because of the similarity, synthetic cannabinoids are sometimes misleadingly called “synthetic marijuana”, and they are often marketed as “safe,” and legal alternatives to marijuana. In fact, they may affect the brain much more powerfully than marijuana; their actual effects can be unpredictable and, in some cases, severe or even cause death.

Manufacturers sell these herbal products in colorful foil packages and sell similar liquid incense products, like e-cigarette fluids, in plastic bottles. They market these products under a wide variety of specific brand names; in past years, K2 and Spice were common. However; now hundreds of other brand names exist, such as Joker, Black Mamba, Kush, and Kronic.

For several years, synthetic cannabinoid mixtures have been easy to buy in drug paraphernalia shops, novelty stores, and gas stations. This easy access and the belief that synthetic cannabinoid products are “natural” and harmless have contributed to their use among young people. Another reason for their use is that standard drug tests cannot easily detect many of the chemicals used in these products.  However, in Texas these products are now illegal and carry the same penalties as marijuana possession cases.

What Do Synthetic Cannabinoids Do?

Synthetic cannabinoids act on the same brain cell receptors as delta-9-tetrahydrocannabinol (THC), the mind-altering ingredient in marijuana.

So far, there have been few scientific studies of the effects of synthetic cannabinoids on the human brain, but researchers do know that some of them bind more strongly than marijuana to the cell receptors affected by THC, and may produce much stronger effects. The resulting health effects can be unpredictable, which makes this drug dangerous.

Because the chemical composition of many synthetic cannabinoid products is unknown and may change from batch to batch, these products are likely to contain substances that cause dramatically different effects than the user might expect, that again makes these products dangerous.

Synthetic cannabinoid users report some effects similar to those produced by marijuana:

  • elevated mood
  • relaxation
  • altered perception—awareness of surrounding objects and conditions
  • symptoms of psychosis—delusional or disordered thinking detached from reality

Psychotic effects include:

  • extreme anxiety
  • confusion
  • paranoia—extreme and unreasonable distrust of others
  • hallucinations—sensations and images that seem real though they are not

Serious Health Effects

There can also be serious health effects associated with synthetic cannabinoids. People who have used synthetic cannabinoids and have been taken to emergency rooms have shown severe effects including:

  • rapid heart rate
  • vomiting
  • violent behavior
  • suicidal thoughts

Synthetic cannabinoids can also raise blood pressure and cause reduced blood supply to the heart, as well as kidney damage and seizures. Use of these drugs is associated with a rising number of deaths.

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