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Monthly Archives: November 2013

Penalties for a Texas DWI

By Peek & Toland on November 29, 2013

Driving while intoxicated (DWI) by alcohol or drugs is a criminal charge. A person who is convicted of this charge may face stiff penalties. Because an aggressive defense is often the best protection against a conviction and the penalties that come with it, it is wise to contact an experienced Austin criminal defense lawyer as soon as possible.

Penalties for a DWI conviction in Texas depend on certain factors, like whether someone was injured, if there was a child in the car, and whether the conviction is the driver’s first, second, or third conviction. Common penalties for these convictions include: Read the rest »

Posted in DWI

What Should I Ask My Immigration Attorney?

By Peek & Toland on November 27, 2013

Choosing an experienced Austin immigration lawyer is an important step in any immigration process. At Peek and Toland, LLP, we understand that you need to find an attorney you trust and with whom you can work, as well as one who has the experience and skills to maximize your chances of success.

Texas Immigration Law

When seeking an immigration attorney, it is often wise to ask questions. Here are some of the top questions to ask your immigration lawyer, both before you begin and during the immigration process. Read the rest »

Posted in Immigration

What are the Differences Between Immigrant and Non-Immigrant Visas?

By Peek & Toland on November 25, 2013

If you are thinking about visiting the United States or moving to the United States, you may have realized that there are many options for visas and other paperwork that will allow you to visit, live, or work legally in the country.

Your experienced Austin immigration attorney can help you analyze the subtle differences between various types of visas and choose the path that is best for you and your needs. Most U.S. visas fall into one of two categories: immigrant visas and non-immigrant visas. These visas differ in several key ways. Read the rest »

Posted in Visas

Four Tips for Choosing a Texas Criminal Defense Attorney

By Peek & Toland on November 15, 2013

When you or someone you care about is facing a criminal arrest or charge, finding the right attorney to fight for the best possible outcome in the case is vitally important. Although your friends or acquaintances may have suggestions, the truth is that there is no single “right” attorney for every client or case. What is important is to choose the attorney who is right for you.

Read the rest »

Posted in Criminal Defense

Preparing to Meet With Your Divorce Attorney

By Peek & Toland on November 13, 2013

A divorce can be one of the most difficult processes in one’s life. Although many elements of a divorce are business-related, separating after a marriage is a deeply personal experience. Choosing an experienced Austin, Texas divorce attorney is one of the most important decisions you will make in the process. Your attorney will assist you throughout the divorce, so it is important to choose someone you feel confident in working with.

When you prepare for your first meeting with your divorce attorney, keep the following things in mind:

  • Prepare emotionally. Because a divorce involves some of the most deeply personal relationships you have, you will have to discuss certain personal matters with your attorney. These discussions may bring up feelings of frustration, anger, resentment, or betrayal. Prepare to face these emotions honestly when you speak to your attorney. Read the rest »

Posted in Divorce

Understanding Marriage and Immigration After DOMA

By Peek & Toland on November 11, 2013

For many years, same-sex couples could not seek a fiancé visa or an adjustment of status through marriage, even if their marriage was legally performed within a U.S. state that recognized their marriage. Several months ago, however, the U.S. Supreme Court struck down the federal Defense of Marriage Act (DOMA), changing the rules for immigration and other benefits for same-sex couples at the federal level and leaving many people seeking the help of an experienced Austin, Texas immigration law firm.

Austin Immigration Law

In the wake of the Supreme Court’s decision putting an end to DOMA, federal government agencies across the board are changing their operations so that same-sex couples can receive federal benefits on the same basis as other couples. One of the agencies that is making these changes is the U.S. Customs and Immigration Service (USCIS), which has begun recognizing applications for fiancé visas and for an adjustment of status through marriage from same-sex couples on the same basis it has recognized these applications from other couples. Read the rest »

Posted in Immigration

How Does a Breath Testing Machine Work?

By Peek & Toland on November 8, 2013

When a Texas driver is pulled over on suspicion of driving while intoxicated (DWI), he or she may be asked to give a breath sample. Breath-testing machines, including the Breathalyzer and DataMaster, use the breath sample to check for the presence of alcohol in the driver’s bloodstream and to estimate the amount of alcohol present. Because breath testing machines can only estimate alcohol concentrations, an experienced Austin criminal defense attorney from Peek and Toland, LLP can employ a defensive strategy that emphasizes the inaccuracy of breath testing results to absolve you of drunk driving charges.

It is scientifically proven that Breathalyzers are often inaccurate and commonly unreliable, and therefore the attorneys at Peek and Toland, LLP do not ever recommend providing a breath sample unless required by court order. Below are just a few of the many reasons for the inaccuracies. Read the rest »

Posted in DWI

This Holiday Season, Don’t Become a DWI Statistic

By Peek & Toland on November 7, 2013

Each holiday season, hundreds of Texas drivers are stopped by law enforcement officials on suspicion of driving under the influence (DUI) or driving while intoxicated (DWI). Most of these cases involve a suspicion that the driver is under the influence of alcohol, although some involve drivers who are suspected of using other drugs – whether illegal, prescription, or over the counter.

Being arrested on suspicion of DWI does not automatically lead to a conviction. However, an arrest can have serious effects on your life, including your driving privileges. During the holiday season, you can protect yourself and those you love from becoming yet another DWI arrest statistic by keeping the following tips in mind: Read the rest »

Posted in DWI

Understanding Adjustment of Status Through Marriage

By Peek & Toland on November 5, 2013

Every year, many couples seek to marry and start their lives together in the United States. In some cases, one member of a couple is a United States citizen or permanent resident while the other is a foreign national. For these couples, obtaining a green card (permanent residency) through an adjustment of status through marriage may be an option.

Adjustment of status through marriage to a U.S. citizen allows a foreign national to apply for permanent residency in the U.S. on the basis of the marriage. It also allows the foreign partner to be classified as an immediate relative for U.S. immigration purposes. The benefit of this classification is that the foreign partner is no longer subject to preference categories for immigration purposes, which may streamline and speed up the immigration process. Read the rest »

Posted in Immigration

Fall 2013: Legal Update, Success Stories, What We’re Reading and Core Values in Action

By Peek & Toland on November 1, 2013

Case Victories


Immigration Case Victories

July 29, 2013 (Citizenship Case) – Client is a legal permanent resident who wanted to earn his citizenship. He applied for citizenship himself, however Client’s citizenship application was sent back to him with a Request for Evidence from USCIS. Client immediately hired Peek & Toland Law Firm to assist him. USCIS stated there were two reasons for Client’s Request for Evidence notice. The first reason was Client’s failure to repay his tax balance, which could have made him ineligible to naturalize. The second reason Client received a Request for Evidence was for two prior convictions for crimes of moral turpitude that would have made him ineligible to naturalize. Peek & Toland quickly responded to USCIS’s Request for Evidence arguing that the Naturalization Policy Manual recognizes someone to have good moral character as long as he or she is making regular payments to the IRS for past due tax balances. Peek & Toland also argued that although Client had two prior convictions, both convictions occurred outside the five year period required for good moral character. USCIS agreed with all of Peek & Toland’s arguments and Client was able to naturalize. Client will now be able to become a U.S. citizen thanks to Peek & Toland’s hard work and thorough understanding of immigration law.

August 8, 2013 (Cancellation of Removal): Client is from Mexico and a legal permanent resident of the U.S. She was arrested and charged with two crimes of moral turpitude, hindering apprehension and two assault family violence charges. Client hired Peek & Toland to represent her in her cancellation of removal case. At Court, the government presented as evidence copies of certified conviction records, however could not provide the originals. Peek & Toland’s immigration team objected to the introduction of the copies of the certified conviction records as evidence. Peek & Toland argued that the government had failed to conform to regulations regarding evidence of criminal convictions and could not introduce copies of certified conviction records in place of originals. The government conceded that it did not have the original certified conviction records on hand and Peek & Toland’s immigration team sought a motion to terminate proceedings for lack of evidence. The Court found in Peek & Toland’s favor and client’s removal proceedings were terminated.

September 5, 2013 (Cancellation of Removal, DACA): Client is an eighteen year old high school student from Mexico living in a county where Peek & Toland does not offer criminal defense services. He has been in the U.S. since he was six years old and is undocumented. Client and his friend were at Wal-Mart when they were stopped by security guards. The security guard asked to search them and discovered an iPhone charger and some cables on Client’s friend. Both Client and his friend were arrested and charged with shoplifting. Unfortunately, Client received an Immigration and Customs Enforcement (ICE) hold and was detained by immigration. Client’s parents hired Peek & Toland to represent their son for his cancellation of removal case and asked Peek & Toland for recommendations on criminal defense attorneys who served their county. Peek & Toland recommended a local attorney for Client’s criminal charges and advised the local criminal defense attorney on how to ensure Client’s plea to his shoplifting charges did not negatively impact his immigration case. Peek & Toland was then able to show ICE that Client was eligible for Deferred Action for Childhood Arrivals (DACA) and should be released from ICE. Client is now free from ICE detainment and is set to graduate this year.

Criminal Defense Case Victories

August 20, 2013 (DWI Case): Client is an undocumented worker living and working in the U.S. He was arrested for a DWI after client’s breathalyzer test resulted in a .13 blood alcohol level. Client hired Peek & Toland Law Firm to provide him with criminal defense and immigration representation. Peek & Toland’s criminal defense team analyzed Client’s DWI arrest video and determined that the officer performing the arrests made severe errors in performing the field sobriety test. Peek & Toland Law Firm met with the prosecutor and pointed out these errors and the problems with Client’s arrest. Peek & Toland was able to convince the prosecutor to allow Client to receive deferred prosecution and dismiss Client’s case. Thanks to Peek & Toland’s criminal defense team, Client will face the judges in immigration court without a conviction on his record.

July 31, 2013 (Possession of Marijuana with ICE Hold): Client is a Honduran citizen living in the U.S. She was arrested for Class B possession of marijuana and taken into custody where she received an Immigration and Customs Enforcement (ICE) hold. Client hired Peek & Toland to represent her in her immigration and criminal defense cases. Peek & Toland was able to negotiate deferred adjudication for Client and nine months of probation. Additionally, Client’s ICE hold was withdrawn after receiving deferred adjudication and Client no longer needed Peek & Toland to represent her on her immigration case because her ICE hold was withdrawn.

August 23, 2013 (DWI, Possession of Drug Paraphernalia and Tampering with Government Records): Client is a 17-year-old Mexican citizen. He was driving a friend home from a club when he swerved off the road and hit a tree. Police arrived at the scene shortly after and asked Client for his identification card. Client only had his school identification card and a fake social security card, however the fake social security card included Client’s real name. Client was given the Field Sobriety Test, which he failed. Client was arrested for a DWI, Possession of Drug Paraphernalia and Tampering with Government Records. Client hired Peek & Toland to represent him for his criminal defense and immigration cases. Peek & Toland’s criminal defense team negotiated with the prosecutor to arrange for a plea of back time on the DWI charge in exchange for a dismissal on the felony charge for tampering with government records. Thus, Client was able to have his felony charge dismissed, receive back time for the DWI charge, which meant he did not have to serve additional time in jail beyond the time he had already spent in jail, and was able to remain in school.

Legal Update


Immigration

Matter of Peralta, BIA Decision, August 1, 2013

The defendant is a native citizen of the Dominican Republic who was a legal permanent resident at the time of his arrest. The facts of the case are as follows, the defendant was arrested when he pointed a laser pointer at a Philadelphia Police Department helicopter pilot’s eyes, causing the pilot to lose control of the helicopter. Once the defendant was arrested he was charged and convicted with endangering public safety, a removable offense under section 237(a)(4)(A). The Department of Homeland Security (DHS) also charged and convicted the defendant with an aggravated felony, specifically, a crime of violence and removable under 237(a)(2)(A)(iii).

The first issue before the Court was whether the defendant’s actions of pointing a laser pointer at a helicopter pilot’s eyes met the definition of an alien who engaged in “criminal activity which endangers public safety” under section 237(a)(4)(A)(ii). Section 237(a)(4)(A) states that “[a]ny alien who has engaged, is engaged, or any time after admission engages in…(ii) any other criminal activity which endangered public safety or national security…is deportable. The Court found that the defendant’s crime of pointing a laser pointer at a helicopter pilot was a crime endangering public safety and a removable offense. First, the Court determined that “criminal activity which endangers the public safety” is limited to those situations where the public at large is endangered. Then, the Court reasoned that the defendant’s crime amounted to the type of crime that endangered public safety because of the potential for a helicopter crash in a populous city like Philadelphia could result in injury or harm to a large segment of the population, rather than just a single victim. The Court also found that the subsection of the body of law for which the statue is found does not “paint a gloss of national security” on public safety, but rather was written with the intent of charging those who endanger public safety, even if national security is or is not a factor.

The court also considered the issue of whether the defendant was removable under 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony crime of violence under section 101(a)(43)(F). The Court agreed with the lower court’s finding that the defendant’s crime was not a crime of violence under 18 U.S.C. § 16 and therefore not an aggravated felony. The Court reasoned that the defendant’s crime did not meet either one of the requirements for a crime of violence under 18 U.S.C. § 16. The Court found that the defendant’s crime did not involve “the use, attempted use, or threatened use of physical force” nor did defendant’s crime involve “a substantial risk that physical force against the person or property of another would be used in the court of committing the offense.” Thus, the Court found that the defendant’s crime was not a crime of violence and therefore not an aggravated felony.

Therefore, although the defendant’s crime was not removable under 237(a)(2)(A)(iii) because it was not deemed a crime of violence and thus not an aggravated felony, the defendant was removable under 237(a)(4)(A)(ii) for criminal activity which endangered public safety. Criminal activity which endangers public safety includes the act of pointing a laser at a helicopter pilot’s eyes when he is operating the aircraft in a large city because of the risk of harm to a large segment of the population.

Criminal Defense

Thompson v. State, Texas Court of Appeals, 3rd District, Austin

The defendant was pulled over for driving 14 mph over the speed limit. When the officer approached defendant’s vehicle, she was only wearing a bra and pants. The officer asked the defendant to put on a shirt and then proceeded to ask her routine traffic stop questions. Defendant could not produce her driver’s license, but provided her social security number to the police officer. When asked where defendant was headed, she reported that she was heading to Austin from Killeen and she had been pulled over the day before for speeding. The officer asked the defendant to step out of the vehicle and then ran information through his system on the defendant via her social security number. The system reported back to him that defendant was clear to go.

However, the officer did not stop there, he noticed the defendant acting nervous, so he asked if she had anything “he needed to know about” in her car, such as illegal guns, knives, or narcotics. The defendant said she did not. Also, when asked, she stated did not smoke marijuana. The officer then requested to search the defendant’s vehicle and she refused. When the officer asked why she refused, she said because it was her “right”. Yet again, the office requested to search the defendant’s vehicle and she declined. Eleven minutes after the officer’s original stop of the defendant; the officer radioed another officer to join him, as well as requested a K-9 unit. Fifteen minutes later, the K-9 unit arrived. When the K-9 unit arrived, the drug dog was alerted to the vehicle, which gave the officers reason to search the vehicle. Upon completing the search, the officers found marijuana seeds by the driver’s side door and in the driver’s seat, as well as marijuana residue on the driver’s side floorboard. Inside a purse on the passenger’s seat the officer found a butterfly knife. The defendant was arrested for possession of a prohibited weapon.

The defendant was convicted of possession and she appealed the conviction on the claim that the trial court erred in denying her motion to suppress. The issue before the Court was whether the police officer’s detention of the defendant until the arrival of the K-9 unit was constitutionally “reasonable” under the totality of the circumstances. The Court found that the defendant’s detention was not reasonable and reversed the defendant’s conviction. The Court stated that the defendant’s conviction should be reversed because the officer’s investigation of the traffic violation was complete and the defendant was free to go before the K-9 unit arrived. The Court argued that even though the officer had not written a citation to the defendant, he had completed his investigation of the traffic stop and unreasonably detained the defendant while he waited for the K-9 unit. The Court stated that an officer can only reasonably detain someone if he or she has reasonable suspicion that an individual has, will soon or is committing a crime. The Court found that the officer’s reasonable suspicion did not provide more than an “inchoate and unparticularized suspicion or ‘hunch’ of criminal activity.” See Illinois v. Wardlow, 528 U.S. 119, 124 (2000). The Court concluded that even though the defendant was speeding, had admitted to receiving a citation the day before, was not able to produce her driver’s license, and was nervous and wearing odd attire, the officer did not provide sufficient specific reasonable inference that the defendant had been, was, or soon would be engaged in criminal activity. Thus, the defendant’s conviction was reversed for the trial court’s denial of the defendant’s motion to suppress.

What We Are Reading


Jeff Recommends:

Love Does, by Bob Goff-   Attorney Bob Goff’s book about his adventures, insights, stories, and life calling to love the people around him.  His funny and quirky personality, overshadowed by his big heart, tell a tale of the importance of relationships and power of love in shaping how your life story can end up if you are brave enough to get out there and do something.

Steve Recommends:

The Three Signs of a Miserable Job, by Patrick Lencioni –  Management Consultant guru Patrick Lencioni again shows through his research and teachings the importance of authentic leadership in an organization in order to prevent a culture and environment where employees feel anonymous, irrelevant and have no way of knowing how they are doing because nobody bothers to measure their progress.   Do you know your people? Do they know the importance of their work? Can they gauge their own contribution to the team’s success?

Core Values In Action


Sowing GenerouslySowing Generously

Peek & Toland’s Law & Life Series: Is Law School Right for Me? Peek & Toland and the University of Texas Liberal Arts Career Services hosted an event for college students seeking a career in the legal field. Jeff Peek and Steve Toland, Partners at Peek & Toland, L.L.P., including Brian Hensley, Senior Attorney at Thompson & Coe, Brad Thompson, President and General Counsel at Circular Energy, and David Muckerheide, Attorney III at the Texas Department of Insurance spoke at the event. The attorneys shared his specific experience as it relates to law school, firm life and work-life balance. The Law & Life Series is a biannual event aimed at exposing prospective legal students to the legal field.

Investing in Excellence

Peek & Toland would like to welcome Attorney Carlos Y. Montoya 

Carlos Y. Montoya - Immigration Attorney Investing in ExcellenceCarlos Y. Montoya, Esq.- Carlos joined Peek & Toland in July from Gutierrez Law Firm in Austin, Texas. Carlos earned his Juris Doctor Degree from The University of Wisconsin Law School in Madison, Wisconsin and his Bachelor of Arts from The University of Texas at Austin. Carlos is an experienced immigration litigator with three years of experiences in EOIR courts in Houston, Dallas and San Antonio. Peek & Toland is happy to welcome Carlos to the immigration team and excited to welcome another experienced immigration removal attorney to the firm.

Investing in Excellence

Investing in ExcellencePeek & Toland Law Firm Attends Global Leadership Summit

Both Jeff Peek and Steve Toland, partners at Peek & Toland, along with four other attorneys and employees on August 14th and 15th attended the Global Leadership Summit in Chicago, Illinois to advance their leadership skills at the firm. Jeff & Steve highly recommend the Global Leadership Summit to any leader committed to leading in their organization with diligence and excellence. To learn more about the Global Leadership Summit, go to https://www.willowcreek.com/events/leadership/.
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Posted in Citizenship

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