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Monthly Archives: July 2016

Calls Mount for an End to Driving Offense Surcharges in Texas

By Peek & Toland on July 29, 2016

When you are convicted of a DWI, or another serious traffic offense in Texas you face paying thousands of dollars. TxDOT claimed on a billboard that DWI offenders pay as much as $17,000 in fines, penalties, and legal fees.

However, one type of punishment is becoming increasingly controversial. Those who are convicted of certain traffic offenses are required to pay annual surcharges to the state to keep their driver’s licenses.

The Driver Responsibility Program was compared to debtor’s prison by state lawmakers earlier this year, reported the Texas Tribune.

Driving offense surcharges are becoming controversial in Texas

The article noted how Texas state senators from both parties spoke out against the program that saddles drivers who have committed traffic offenses with surcharges for years.

As criminal defense attorneys who represent DWI clients, we are well aware of the hardships caused by this program that punishes offenders over and over.

The program was set up back in 2003. Although it is meant to promote Safer driving, is also seen as a way of making up a budget shortfall and is leaving some drivers in a poverty trap, according to reports. Almost 1.3 million drivers now have invalid licenses, according to the Texas Criminal Justice Coalition.

Those leading the charge against the surcharges included State Sen. Don Huffines, R-Dallas, who compared it to debtors’ prison. The comparison stuck with fellow senators who mentioned it a number of times. Huffines said:

“Obviously, it doesn’t bother a rich person, someone who has the ability to pay. But we’re creating a permanent underclass.”

In May, the Texas Smart-on-Crime Coalition also expressed its opposition to the surcharges. The coalition is made up of civil rights, business and criminal justice advocates. It is campaigning to force lawmakers to repeal the Driver Responsibility Program in 2017 next year.

During the 2015 legislative session, the Senate backed a move to water down the program. It died in the House. The surcharges were reduced under a second bill that became law.

The Texas Department of Public Safety operates the program. If you are convicted of certain traffic violations, including DWI, some speeding offenses and driving without insurance, you will be hit with surcharges every year for three years over and above any fines other fines and fees that are a result of your offense. The surcharges rise as high as $2,000 for more serious drunk driving offenses.

Texas has some tough DWI laws. If you have been charged with drunk driving, it’s important to hire an experienced Austin DWI defense lawyer as soon as possible. Call us today for a free and confidential consultation at (512) 474-4445.

Posted in DWI

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More Crimes Are Being Committed with Imitation Weapons in Texas

By Peek & Toland on July 28, 2016

An increasing number of offenses are being committed with imitation weapons in Texas, according to the authorities. The trend appears to be fueled by a mistaken belief that using a replica gun for a crime will result in a lighter sentence.

The weapons in question include BB guns and other imitation firearms. A recent Associated Press story suggested the replicas are used because they are cheaper and easier for offenders to obtain. There’s also the erroneous belief that offenders will face lower sentences if they are caught using a fake gun than if they are using a real gun.

More offenses are being committed using imitation weapons

Offenses using imitation weapons are on the rise in Texas

In Texas, when a victim of a crime believes a weapon pointed at them is real, it’s sufficient grounds to warrant a first-degree felony charge and a maximum sentence of life in prison. Only New Jersey has a similar offense, although the punishment is less harsh there, AP reported. Many other states draw a distinction between a real and an imitation firearm being used in a crime.

Parts of Texas to see a spike in the use of imitation weapons include Waco where a BB gun was recently used in a convenience store robbery.

Johnny Price, owner of Big Iron Handgun License Training, told the TV station NewsWest 9, the restrictions on buying BB and airsoft guns in Texas are minimal.

Arlington has recorded about half a dozen cases over the last few months in which imitation guns have been used for crimes.

A large amount of the cases our Texas criminal defense lawyers see involve brandishing, possessing or using a firearm. If a victim thinks an imitation firearm is real, you are likely to find yourself facing a harsh sentence.

While using fake weapons may not result in lighter sentences in Texas, there’s also a danger that those using them could be shot dead by the police.

Using Imitation Weapons Can Lead to Fatal Police Shootings

Federal regulators require bright markings on all replica guns to make it clear they are not real ones. Tragedies still occur.

Last year a drunk man who pulled out a life-like looking replica run outside a restaurant in Palestine, Texas, was shot dead by police, the Daily Mail reported.

Earlier this year, officials in Cleveland, Ohio, reached a $6 million wrongful death settlement with the family of 12-year-old Tamir Rice who was killed by a police officer while playing with a pellet gun. It was missing the orange tip as is required by federal law.

If you have been charged with an offense involving a firearm whether it was real or imitation, you could be facing the prospect of a first-degree felony charge and life in prison. You need to act fast and should contact Peek & Toland today for a free consultation.

Posted in Criminal Defense

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Austin Police Officer Who Lost his Job over a DWI is Re-instated

By Peek & Toland on July 27, 2016

Being convicted of a DWI has serious consequences, particularly if you are a police officer. However, a conviction doesn’t mean you have no right to seek reinstatement.

This was illustrated in a recent case in which a former Austin police officer who lost his job in 2015 after being charged with drunk driving, got it back again after a ruling by an arbitrator.

The Statesman reported on how Albert “Matt” Arevalo was fired last year by Austin police Chief Art Acevedo following a drunken driving arrest.

A police officer was reinstated in Austin after a DWI

The article referred to a “zero-tolerance” policy in the department. However, the police union fought the dismissal hard, saying the officer deserved a second chance.

Arevalo was arrested when he was clocked speeding 91 mph in a 55 mph zone, according to court reports. His blood/alcohol level was found to be more than twice the legal limit for driving.

Austin Police Department imposed a policy in April 2014 which stipulated that employees will lose their jobs if they are arrested for drunk driving, irrespective of the result of the criminal case against the defendant if an internal investigation indicates they are drunk.

The Austin Police Association has campaigned for a more subjective standard in which drunken driving offenses are looked at on a case-by-case basis.

President Ken Casaday told the Statesman that Arevalo had a distinguished record when he served with the Marines in Iraq and cared for the wounded as they were taken from the battlefields to nearby hospitals. Casaday said he sought help for post-traumatic stress disorder (PTSD) after he returned home in 2013.

Although he appeared to have put his health issues behind him, the day before he was arrested for DWI, he suffered a relapse as he made preparations to attend the funeral of another police officer from Austin, a close friend who had been killed in a paraglider accident.

The arbitrator ruled that Arevalo should not have lost his job. Instead, he should have received an 180-day suspension and was eligible for backpay.

Notwithstanding the decision in this case, many police officers convicted of a DWI in Texas can no longer work for their departments.

Recently, a Roscoe police officer lost his job after he was arrested for driving while intoxicated in central Texas. Steven Spencer was arrested for DWI on March 26 in Dripping Springs. He was released on a bond of $5,000 but was let go from the police department.

Texas has tough DWI laws. Even if you are not a police officer or in another position in which a DWI charge might jeopardize your job, a drunk driving conviction will disrupt your life and cost you thousands of dollars. See our DWI resources here.

If you are facing a DWI charge it’s vital to act fast and to work on your defense. The important first step is to contact the law offices of Peek & Toland .

Posted in DWI

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What’s the Difference Between Tax Fraud and Tax Evasion?

By Peek & Toland on July 26, 2016

Tax fraud and evasion are taken very seriously by the Internal Revenue Service (IRS). Those who commit these white collar crimes may end up with a hefty fine or a jail sentence.

These crimes don’t always make headlines unless a famous person is convicted. A case in point is home and garden guru Martha Stewart, who was forced to pay $220,000 in back taxes and penalties to the State of New York for evasion of taxes on her mansion.

Tax fraud and tax evasion are different issues

The complexity of the taxation system means there is a fine line between criminal activity and negligence when it comes to unpaid taxes.

It’s also useful to know the distinctions between tax fraud and tax evasion.

Tax fraud is a general term which can touch on a raft of laws found in Title 26 (the Internal Revenue Code) as well as Title 18 of the United States Code.

To commit fraud, the taxpayer must have shown intent to defraud the government by failing to pay taxes that he or she was well aware were lawfully due.   You can face civil as well as criminal penalties for taxation fraud.

It’s possible for a taxpayer who has committed tax fraud to face civil penalties alone under 26 USC § 6663, without being charged with the offense of criminal tax evasion.

Why It’s Difficult for the IRS To Prove Tax Fraud

The IRS faces an uphill task in proving fraud of taxes because the burden of proof is on the department to show that the taxpayer deliberately defrauded the government out of revenue. It’s not easy to prove that a taxpayer willfully intended to defraud the government out of taxation dollars, which is why the IRS often takes the civil rather than the criminal course of suing the taxpayer for unpaid taxes.

You will usually successfully avoid being charged with a crime as long as you have a reasonable argument as to why you failed to pay your taxes.

What is Tax Evasion?

Tax evasion usually results in criminal charges. In these cases, the defendant is accused of deliberately misrepresenting taxable income to the IRS.

Examples of evasion include:

1 Failing to file tax returns;

2 Failing to declare sizeable additional earnings like a second job;

3 Making up false deductions or deliberately overstating them;

4 Using a false social security number.

You should be aware that there are legitimate ways to minimize or avoid paying taxes as described in this FindLaw article.

Our Austin criminal defense lawyers help people who are charged with white collar crimes. You can find out more here on our website.

If you are facing charges of tax fraud or evasion, it’s vital to act fast so as you can make a strong case against the IRS that you did not have criminal intent. Call us for a consultation at (512) 474-4445.

Posted in White Collar Crimes

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Spate of Highway Kidnappings in Northern Mexico Sparks Calls for U.S. Security Review

By Peek & Toland on July 25, 2016

The often-volatile border between the United States and Mexico presents massive challenges to law enforcement. Recently kidnappings of Americans in northern Mexico have made headlines and worried the authorities.

The recent kidnapping of a couple from Dallas in the northeastern Mexican state of Tamaulipas has illustrated the vulnerabilities and the security challenge in the border zone.

The Dallas Morning News reported on how all Mexican border states are under security advisories from the U.S. government. The highest levels of warning concern the states of Tamaulipas and Coahuila.

Kidnappings have surged in parts of northern Mexico

On April 15, the U.S State Department updated its warning about travel to Mexico.

It stated:

“U.S. citizens have been the victims of violent crimes, such as homicide, kidnapping, carjacking, and robbery by organized criminal groups in various Mexican states.”

Kidnappings Surge in Tamaulipas

The family from the Dallas area was kidnapped in April en route to a funeral in the state of San Luis Potosí in Mexico. They became the victims of a highway assault that led to almost three weeks in captivity three hours from the Texas border, near the Tamaulipas capital of Ciudad Victoria.

The incident raised concerns about kidnappings in Tamaulipas, a state whose security situation has “deteriorated horribly” according to U.S. Rep. Filemon Vela, D-Brownsville, who is a member of the House Homeland Security Committee.

Last year Breitbart Texas reported on how a drug cartel in Tamaulipas was seeking Americans for kidnapping to obtain ransom money.

The article pointed out that the Gulf Cartel has started to “target innocent people as a way to make quick money.”

Some of the victims did not survive their kidnapping ordeal.

There have even been instances of Mexican cartels crossing the U.S. border to carry out kidnappings.

In 2011, CNS News spoke to Sheriff Tomas Herrera of Maverick County, who said he did not agree with the assessment of the Department of Homeland Security that security at the U.S-Mexico border was improving.

He said he did not believe a single mile of the 85-mile stretch of border between the U.S. and Mexico in Maverick County, was secure and members of the Mexican drug cartels were making incursions into the United States to kidnap teenagers for their smuggling operations.

Serious crimes committed in the areas around the southern border are investigated by the FBI. They include human smuggling, drug trafficking, kidnap, murder, and corruption.

The FBI points out cash and weapons are flowing south on the 2,000-mile border and drugs are flowing north.

If you are charged with serious crimes such as kidnapping or human smuggling, you are likely to be facing a long jail sentence. Our Austin criminal defense attorneys can help you to fight these charges. Call us as soon as possible at (512) 474-4445.

Posted in Criminal Defense, Uncategorized

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Texas Valedictorian Reveals She is an Undocumented Immigrant in Speech

By Peek & Toland on July 22, 2016

We hear a lot of negative things about undocumented immigrants and the success stories are often hidden. A high school valedictorian helped readdress the balance when she revealed her status during a graduation speech in Texas.

Larissa Martinez is Yale-bound. She used her valedictorian speech at McKinney Boyd High School in McKinney, Texas on June 3 to convey the “unexpected realities” of being undocumented in the United States.

valedictorian reveals she is undocumented in speech

The speech provided a different perspective on the debate about undocumented immigrants which has come before the U.S. Supreme Court. President Obama’s deferred action for childhood arrivals program (DACA) is described here on our website. Martinez fits the criteria.

During her speech, she described herself as “one of the 11 million undocumented immigrants living in the shadows of the United States.”

Martinez said she had decided to speak out about her status in her speech because it might be the only chance she had to convey the truth to a wider audience.

She spoke of the importance of embracing immigrants, appreciating what they have to offer as well as detailing the obstacles she faced to academic success while she charted a course to Yale. Martinez won a full scholarship and hopes to become a neurosurgeon.

In a speech that had echoes of the famous oratory of Dr. Martin Luther King Jr., she made the case for other immigrants, praising “people with dreams, aspirations, and hopes.”

She said immigrants rather than a wall built on “hatred” would help make America great again.

Martinez’s teachers said they recognized her great potential ever since her freshman year.

Success stories like this make headlines, but they are far from unique. There are many cases of immigrants from Mexico and elsewhere who come to the United States with little education but go on to great things.

The case of Luis Govea, who hardly knew a word of English when he moved to Texas from Mexico six years ago, was recently featured on NBC News.

The 18-year-old was the valedictorian at Irving High School in Texas. He has won a full scholarship to the prestigious Stanford University, which he will attend in the fall. He won his scholarship through a program called QuestBridge that links academically gifted students from low-income backgrounds to top universities across the U.S.

He said his family was incredibly supportive in backing his academic career after he arrived in America in 2010.

A recent academic study from California found Mexicans are the most successful immigrants in the United States when their starting point is taken into consideration.

If you or your child is an undocumented immigrant who may benefit from deferred action, you will likely be facing a large amount of uncertainty. Our Austin family immigration lawyers can help you. Call us for help at (512) 474-4445.

Posted in Immigration Reform

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ICE to Set up Texas Immigration Center to House Transgender Detainees

By Peek & Toland on July 21, 2016

A new immigration center in Texas will include a special unit for transgender detainees, highlighting some of the difficulties they face in these facilities.

A report in Inquisitr stated the Prairieland Detention Center will open in November in Alvarado in Texas and will be the second center to include a transgender unit.

ICE says it is expected to house about 700 detainees. There will be a segregated 36-bed unit for transgender occupants.

ICE plans for transgender unit in detention center are under fire

The agency points out each detainee will be given an individual detention plan that covers such things as clothing options, hygiene issues, searches and accommodation assignments.

These apparent safeguards have failed to satisfy advocates’ groups who claim transgender people are more vulnerable than the rest of the population and are more likely to be victims of sexual and physical assaults when they are held in detention facilities.

Aaron Morris, executive director of Immigration Equality, an advocates group for LGBT immigrants, told the Guardian they “simply should not be in detention”.

Morris said putting most of one vulnerable group in a single facility raises serious issues of oversight.

There are also concerns about whether the safeguards would be put in place. Santa Ana city jail in Texas also has a specialized program for transgender people, but the Guardian reported it has yet to implement the specialist guidance that was published in a June 2015 memorandum.

How Many Undocumented Immigrants Are Transgender?

According to the UCLA Williams Institute, there are 267,000 undocumented LGBT immigrants in the United States. Between 15,000 and 50,000 are transgender, states the National Center for Transgender Equality.

Some of these immigrants come to the U.S. because they have faced persecution in their home nation, while others are looking for a better quality of life here. Interviews with transgender people suggest they are more likely to face discrimination than other immigrants once they are in the U.S.

Diverse cities such as Austin are magnets for  immigrants.  Austin became a “majority minority” city more than 10 years ago. The rush to build centers for these immigrants in Texas highlights the way the authorities are finally recognizing the rights of transgender people, but support groups say it doesn’t go far enough, and there is certainly a raft of concerns about how immigrants are treated in detention centers. This issue is part of the immigration reform debate in Texas.

If you have any questions about immigration in Texas, see our immigration FAQs, or call our experienced attorneys for a confidential consultation at (512) 474-4445.

Posted in Immigration

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Lawyer Hailed as a Hero for Saving Christians from ISIS Is Convicted of Fraud

By Peek & Toland on July 20, 2016

A lawyer and immigration activist was hailed as a hero for saving Christians in Iraq from persecution. But now he is the one facing jail after being convicted of helping clients falsify asylum claims.

Robert DeKalaita helped save thousands of Iraqi-American Christians from terrible fates at the hands of ISIS, reported Fox News.

While the lawyer is a popular figure In the Iraqi-American Christian community because he helped keep hundreds of Christians out of the hands of Muslim extremists, federal authorities accused him of getting his clients to lie to obtain asylum.

Lawyer Robert DeKalaita is convicted of making bogus asylum claims

In May, a federal jury convicted him of falsifying paperwork to help his clients secure asylum in the United States by making bogus claims of persecution and torture.

As we explain here in our blog, you must have been treated in certain detrimental ways in your home nation to be eligible for asylum. Refugees and asylum seekers need to show persecution in areas such as race, religion or nationality.

DeKelaita a 53-year-old attorney who was born in Iraq faces up to 35 years in prison after his conviction for helping clients falsify asylum applications. His backers said he had highlighted the federal government’s failure to address the issue of the persecution of Christians in the Middle East.

Federal Law Has Harsh Penalties for Fraudulent Asylum Claims

The laws on asylum were changed in 1996 when Congress imposed a new penalty for all asylum applicants who filed applications. Asylum seekers who filed frivolous applications were prevented from receiving benefits under the Immigration and Nationality Act (INA). This is obviously a serious measure because it means an immigration judge can bar an asylum seeker from receiving benefits such as asylum and temporary protected status. However, a frivolous funding does not prevent you receiving withholding of removal under INA § 241 or protection under the auspices of the United Nations Convention Against Torture (CAT).

If you lie on an asylum claim, you can face dire consequences years later if your lie catches up with you. If your application is approved and you gain asylum and later successfully obtain a green card, you could still lose it and be removed at a later date if an untruth is discovered. There have even been rare cases of former asylum seekers losing citizenship.

The extent of asylum fraud remains a matter of conjecture but there have been some cases of large scale operations. In 2014, a massive prosecution was held involving claims of mass asylum fraud among the Chinese population of New York City, reported the New York Times.

If you are accused of making a fraudulent asylum claim it’s important to hire an experienced criminal and immigration attorney as soon as possible to fight the potentially dire consequences. Call Peek & Toland at (512) 474-4445 or see our FAQs on immigration.

Posted in Immigration

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Challenge on Immigration Detention Centers will be Heard in Texas Court

By Peek & Toland on July 19, 2016

There has been a lot of publicity in recent years about children who have been illegally crossing the southern U.S. border, only to end up held in immigration detention centers.

The fact children have been making this hazardous journey graphically illustrates the level of fear and violence in some Central American countries and some parts of Mexico.

The ongoing housing of these children for long periods in detention centers in Texas is a matter of continued controversy as immigration officials brace themselves for another wave of arrivals this summer.

immigrants often end up in detention centers

undocumented immigrants often end up in detention centers

An Associated Press story in May revealed how the issue has become a matter for litigation.

Children are housed at two detention centers south of San Antonio in Texas by U.S. Immigration and Customs Enforcement. The agency appealed a ruling by California U.S. District Judge Dolly Gee in 2015 that ordered the children to be released from the centers “without unnecessary delay.”

While ICE maintains it is trying to comply with the judge’s order, a state agency has sought to have the two detention centers in Texas licensed as childcare facilities.

The move prompted legal opposition from immigrant advocate groups. Grassroots Leadership from Austin, was successful in gaining a temporary injunction that has stalled the award of a child care facility license to South Texas Family Residential Center in Dilley, a 2,400-bed facility, reported the Statesman. Another Texas detention center, the 500-bed building in Karnes City, received a temporary license in April.

Austin-based Judge Karin Crump issued a temporary injunction that prevented the Texas Department of Family and Protective Services (DFPS) from issuing a child care license to the Dilley center. The issuing of a license would have allowed standards to be lowered at the South Texas Family Residential Center which is operated by Corrections Corporation of America.

A hearing will now take place in September to decide whether the state agency has the authority to give a license to both the Dilley facility and the one in Karnes County, Texas which is run by GEO Group.   ICE detains children and mothers at both centers.

At the crux of the legal fight is the time children and their families stay in the centers. Immigrant advocate groups argue the lawsuit forms part of their broader legal attempts to get federal officials to adhere to a longstanding agreement for families and kids to be held for short periods only in centers before being released into the homes of families and friends pending their immigration hearings.  Our Austin immigration attorneys represent families who fight deportation in these circumstances.

Jennifer Elzea, a spokeswoman for ICE, said the licensing of Karnes is “an important step” to improve oversight at the center.

Courtroom battles have been waged in Texas and California. Federal officials argue the lawsuits are an added burden in their attempts to respond to another influx of immigrants that they expect to see this summer.

Facing deportation is bad enough without spending time in immigrant detention centers. If you are facing deportation, you may be able to fight it and there are options.  For more details or to make a consultation appointment, contact our Texas immigration attorneys.

Posted in Cancellation of Removal, Immigration

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Texas Can Do Its Own Background Checks on Refugees says AG

By Peek & Toland on July 18, 2016

Texas appears to have been unsuccessful in its efforts to keep Syrian refugees out of the state, but it continues to court controversy by insisting it’s legal to conduct background checks on refugees.

Texas Attorney General Ken Paxton reaffirmed his stance that state officials can impose further security checks on refugees who move to the state, in a written opinion in May.

The opinion was issued just months after Gov. Greg Abbott wrote to President Barack Obama to inform him that Texas would not take in Syrian refugees in the light of last year’s terrorist attacks in Paris. It failed to recognize the state’s limited powers over where refugees can be placed.

AG says Texas can do background checks

Paxton’s written opinion relating to refugee dollars warned that while state background checks do not violate federal law, they could violate the guarantee of equal protection under the U.S. Constitution if based on race or gender.

Abbott had questioned the adequacy of federal background checks to pick up terrorists who might be hiding in an influx of immigrants. Paxton said the potential security risks posed by Syrian refugees should justify additional background checks in Texas.

At Peek and Toland, PLLC, we help those who are seeking asylum in the United States. Asylum seekers and refugees must satisfy the same criteria, but refugees apply when they are outside the U.S. and asylum seekers when they are on U.S. soil. Further details are provided in this blog.

You must show you have been persecuted or have a “well-founded fear” of persecution to be accepted as a refugee or an asylum seeker.

Paxton said in his opinion that there is “no question that security concerns” can be a legitimate basis on which Texas can distinguish between arrivals who pose a heightened security risk and those who do not.

Groups supporting refugees took issue with Paxton’s stance. Rebecca Robertson with the Texas ACLU said it was based on an “irrational fear” of those fleeing the war in Syria who need help rather than discrimination.

In legal terms, the opinions of attorney generals are not binding but are interpretations of legal questions.

To date, federal judges have rejected Abbott and Paxton’s request to impose an order that would prevent Syrian refugees coming to Texas.

If you wish to apply for asylum, or you or a family member is facing an immigration issue, our experienced Austin immigration attorneys can help you. Call us today at (512) 474-4445.

Posted in Immigration

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