Monthly Archives: October 2020

Rules for Minors & the Consumption of Alcohol in Texas

By Peek & Toland on October 30, 2020

One of the most stressful times as a parent is teaching their minors about the peer pressures of alcohol and drugs. Attorney Steve Toland begins a series on minors and alcohol in Texas. In this video, he discusses four rules or things to remember about minors in alcohol consumption or underage drinking in Texas.

1. Any amount of alcohol that can subject your child to a ticket for minors and consumption

As you are aware, you have to be 21 or over to drink alcohol. Therefore, any amount of alcohol counts. There is a myriad of ways that a police officer can prove that your child has consumed alcohol, such as alcohol smelled on their breath, or they admit to drinking alcohol. Although rare, they can also get a breath or blood test.

2. Minor in consumption of alcohol is a class C ticket.

A class C ticket is punishable up to a $500 fine, and it can stay on their record. If you’re not careful, it can really hamper children applying to college. Most college applications ask about any contact with law enforcement, any ticketable offense, not just arrestable offenses.

3. There is an exception that exists for minors and consumption, but it’s really narrow.

In a nutshell, the exception says that if you are within a vantage point or within eyesight of your parents, spouse, or guardian, you’re allowed to drink alcohol. But that’s a rare exception. Kids who are caught drinking alcohol are usually not doing it in front of their parents. They are generally with their friends.
Remember that a guardian is somebody who under Texas laws is their caretaker and guardian and has those rights under the law. Chaperones don’t count. For example, you can’t have a couple of parents watch over a teenage party.

4. There is a medical assistance exception for minors and consumption of alcohol

This is a great thing that the Texas legislature carved out to protect kids and encourage them to report overindulgence of alcohol or potential alcohol poisoning. So, any conversation you have with your kiddos, you want to be able to really talk to them about this exception. Suppose they find themselves scared because they had too much to drink. In that case, they can call and tell any hospital staff, medical assistant, or a police officer for help. They will not be charged with a minor in consumption as long as they tell the truth.

The exception also applies to a friend. Suppose you are a friend of somebody who’s had too much to drink, and you may have had a few sips of alcohol as well. However, if you are afraid that your friend might be at risk of alcohol poisoning, you can report it and not get charged with a minor consumption ticket, either. As long as you stay the entire time to cooperate with the police, the medical staff, and you stay with your friend until their parents come or someone is there with them.

As always, if you have any questions about these issues, please reach out to us. We are always glad to help.

Posted in Criminal Defense

Learn English In Less Than A Year for Citizenship Test

By Peek & Toland on October 28, 2020

Learning a foreign language, like English, is not easy, but it is possible to achieve. Immigration attorney Jeff Peek gives you eight tips that helped him learn Spanish in less than ten months. These tips can be applied to learning any foreign language. Still, it’s especially beneficial for those who want to learn English and are applying for citizenship and have to take the USCIS naturalization test.

  1. Have a base knowledge of the language. 
  2. Immerse yourself in the language and the culture. 
  3. Travel to that foreign-speaking country alone. 
  4. Develop daily habits of practice.
  5. If you can, get a tutor.
  6. Find things to tune your ear, such as listening to music, watching movies, etc.  
  7. Find yourself a close friend or boyfriend/girlfriend who speaks the language.
  8. Continue learning and practicing. 

If you do all these tips, you will find that the first two months would be rough, but then about month three, it just starts slowing down. You begin understanding people, and you can express yourself better. The steep curve starts flattening out a bit, and you can switch your brain to the foreign language you are trying to learn.  

Posted in Citizenship, Immigration

Penalties for Boating While Intoxicated in Texas

By Peek & Toland on October 23, 2020

Attorney Steve Toland wraps up his 3-part series of Alcohol and Boating Offenses. He explains all the penalty ranges in the video below if you are convicted of boating while intoxicated.

The penalty ranges are very similar to a DWI or driving while intoxicated.

Class B Misdemeanor
The first offense and conviction for boating while intoxicated (BWI) is a class B misdemeanor, as long as your blood alcohol level is under 0.15. Like all class B misdemeanors in Texas, you face up to:

  • $2,000 fine or
  • 2 years of probation or
  • 3 days in a jail sentence

Class A Misdemeanor
A class A misdemeanor is when your blood alcohol level is 0.15 or higher on a first-time conviction for BWI or a second conviction. Like all class A misdemeanors in Texas punishable up to

  • $4,000 fine
  • 2-year probation
  • Jail sentence substantially similar to a class B misdemeanor

Third-Degree Felony
Many BWI cases result from an accident that brings law enforcement onto the scene, and then a subsequent arrest is made for BWI. If somebody suffers a serious bodily injury, that’s a third-degree felony in Texas, that’s punishable

  • 2 to 10 years in prison
  • Up to a $10,000 fine or
  • Up to 10 years of probation

Second-Degree Felony
God forbid, if somebody is killed, that is manslaughter in Texas. That’s a second-degree felony, and that’s punishable

  • From 2 years up to 20 years in prison and
  • $10,000 fine or
  • 10 years of probation.

People are also surprised to learn that BWI’s conviction is the same as a DWI in terms of your driver’s license suspension. Therefore, you can have your driver’s license suspended for up to 90 days or more, depending on the number of convictions you have.

Also, if there are subsequent offense for BWI or a felony for BWI can trigger the judge to order you to install an ignition interlock device on your motor vehicle, even though you were driving a boat for your conviction.

That being said, these are very defensible. We’ve talked in past episodes about the importance of hiring an attorney immediately and vigorously attacking these cases. They use what is called Seated Flotation Sobriety Test (SFST). This test is where you sit down, and they check you. As you know, the signs of being on a boat for an extended period are very similar to the signs of intoxication or impairment that somebody could have. Because of that, there is a 32-34% false arrest rate for those field sobriety tests. That’s why you need to attack these vigorously. Therefore, you need to hire an excellent attorney as soon as possible.

If you, or a loved one, face any issues with this or been arrested and charged with BWI, reach out to us right away. We have vast experience in his area, and we’d love to help you.

Posted in Criminal Defense

How Long Does It Take to Receive a Green Card Through Marriage?

By Peek & Toland on October 21, 2020

There is a common misconception that marrying a U.S. citizen is an easy and fast process. Unfortunately, that is not the case. In the video below, attorney Jeff Peek talks about how long it actually takes to adjust your status inside the U.S. or apply for a green card outside the U.S.

Many have heard through friends or family that if you marry a U.S. citizen, that it’s an easy path to becoming a permanent resident. While that can be true, and certainly marrying a U.S. citizen does provide an opportunity, you have to have several eligibility factors available to you. But the bigger question is, how long is that going to take?

There’s no expedited fee for adjustment of status or for applying for a green card outside the U.S. What we’ve seen is that the process inside the United States is usually the best, as far as time and ease. However, it can still take up to 10-11 months to receive a green card. While you wait, you will obtain a work permit and a travel permit, if you paid for one, which can also take 4-5 months to receive.

On the other side, if you’re going to try to do things outside the U.S., the process is even longer. It can take up to a year to receive a green card.

Other people might think that getting a fiancé visa would be faster as well. Think again. Even that has a lengthy process time. Right now, the wait time can be over a year.

Our point is don’t assume that just because you have a U.S. citizen fiancé and getting married, it will be an easy and quick process. It’s not.

Now, there are some tricks of the trade. There are little things you can do to speed up or make yourself eligible for different processes. Which we recommend you reach out to an attorney so they can further explain to you those options.

We want to note that don’t assume that because you have a visa, you can leave the United States, get married to a U.S. citizen outside, come back in with that visa, and later on change your status. That assumption can lead to problems down the road.

Every time you come into the U.S. the officers will look at your intent. Meaning what was your intention of coming to the United States when you came in, even though you already have this approved visa. If they find out you married a U.S. citizen then left on a tourist visa, came back in on a tourist visa, and then tried to adjust status, it can lead to a denial. Likewise, if you were here on a work visa, went outside the U.S., married a U.S. citizen, and came back in on your work visa, even though you married a U.s. citizen, it can be an issue. If you cannot convince them that your intention when you came into the U.S. was temporary and plan on leaving again to go back to your home country, they can deny you, saying you knew you would adjust status coming into the country.

Therefore, you have to be very careful about how you plan trips, plan your wedding if it’s going to be outside of the U.S., and don’t assume things. Timing is crucial, so talk to a lawyer quickly if you have any inkling that you might want to get married.

Applying for an adjustment of status or a green card can be a very stressful process. Just getting married has its stresses, don’t add to it by making mistakes of not planning or getting competent immigration advice from a seasoned immigration expert.

If you are getting married and want to adjust status, we’d love to help you, or if you have an immigration question, please don’t hesitate to reach out to us at 512-474-4445.

Posted in Fiance Visas, Green Cards, Immigration

5 Things to Remember When Drinking Alcohol & Boating

By Peek & Toland on October 16, 2020

We continue our discussion about alcohol and boating. 

Attorney Steve Toland shares five important things to remember when it comes to alcohol and boating. Any time you mix those two together, it comes with a lot of responsibility. Therefore, it’s essential to know the following.

1. Law enforcement can investigate you for BWI if you’re on a boat.

A boat is defined in Texas as a vessel, which is any device that carries one or more people over the water that’s propelled by something other than the ocean currents. 

2. There are broad discretionary powers by law enforcement to pull you over

It’s different than driving a motor vehicle. For boating, there is a broad warrantless exception called the safety check or safety exception. It means that law enforcement can come on your boat and ask you about fire extinguishers, life jackets, and things like that. You need to expect that when you’re out on the water, law enforcement at any point could stop you and ask about the alcohol on board. Nonetheless, you should consult an attorney if you have questions about that, but that’s the general rule to keep in mind.

3. The legal definition of intoxication on a boat, it’s the same as driving. 

Like driving the blood alcohol content, it’s 0.08, or the loss of your mental or physical faculties due to the introduction of alcohol or drugs in your system. 

4. Many cases result in a false arrest. 

That is because the signs of impairment for intoxication are substantially similar to the signs people exhibit when they’ve been out on a boat all day. If you think about it, bloodshot, glassy eyes due to the wind, a raspy horsey voice from being out on the water, wobbly sea legs, and then all these things are hard to distinguish between somebody who’s had too much to drink and somebody who’s been on a boat all day. Our advice is always to consult an attorney if you have been wrongfully arrested. 

5. You and the passengers are allowed to drink alcohol. 

You are allowed to drink alcohol on the boat, which is different from a motor vehicle. So, if you’re driving the boat and you’re the captain, you can have an open container, and that’s not against the law. Nevertheless, you can’t be intoxicated. And likewise other people on your boat, your passengers, they can also drink alcohol. Again, they’re allowed to do that, unlike a motor vehicle. 

These are five important things to remember about BWIs. In our last video of the series, we’re going to talk about the penalty ranges and defenses available to you for these types of arrests or charges. 

If you have any questions in this area, you or a loved one have been facing a charge of BWI, alcohol, and boating. Reach out to us. We’re glad to help. 

Posted in Criminal Defense

Can I divorce, remarry, and request residency for my future spouse?

By Peek & Toland on October 14, 2020

What if you gain permanent residence through marriage but decide to divorce and now want to remarry and want to file residency for someone else? Is it a fraud?

Attorney Jeff Peeks answers this question and talks about a specific immigration law provision about this situation and the penalties that can occur if a marriage is fraudulent.

First and foremost, it’s important to note that immigration and the federal government take immigration marriage fraud seriously. It is punishable by a federal felony. You can get time in prison, a hefty fine, and deportation.

Every immigration case is different, but I’ve seen on more than one occasion and where we have a client who received their permanent residency through marriage of a U.S. citizen. After a few years, they want to get a divorce and get remarried and file for their new spouse. It might sound fishy, but first, we have to ask, is it even possible to do that?

There is a specific provision in immigration law which specifically points this out. It says if you are a permanent resident holder and received your residency through marriage, but then you divorce the previous U.S. citizen or resident, and then turn around and want to file for somebody else? Well, that provision states that you cannot do that unless you’ve had your LPR card, residency, for more than five years.

Now, if you cannot wait for those five years, there’s another option where you can show by clear and convincing evidence that the previous marriage was not under the purpose of evading immigration laws.

Posted in Immigration, Uncategorized

Can the Police Pull You Over While Boating?

By Peek & Toland on October 9, 2020

Here in Texas, we are lucky to have amazing access to lakes, inland lakes, waterways, and coastal waterways, which many enjoy boating. However, what we’re noticing now over the last 20 years is a real increase in people being arrested for alcohol-related offenses while boating. 

It’s no wonder because Texas State Agencies and County Authorities have been spending more and more money, resources, and training, which have resulted in subsequent arrests of people for alcohol-related offenses. 

We thought it would be a good idea for us to take the next three series and talk about alcohol-related offenses when you’re boating.

Can the police pull you over or stop you while you’re on a boat?

The answer generally is yes. The police have unfettered access to stop you and detain you and come on your boat. It’s one of the warrantless exceptions under your constitutional rights here in Texas. And the auspices of that is going to be a safety check. Generally speaking, any Texas Parks and Wildlife, Coast Guard, or some like a County Agency, if they’re in charge of supervising the Lake, they can stop you and pull you over. They can stop you and check to make sure you have a fire extinguisher, safety lights, safety flares, your tags, registration in the right place, your stickers on the outside of your boat, life jackets, all those kinds of things. Suppose they smell alcohol or see alcohol out in the open. In that case, their investigation could quickly switch from a safety check and do some investigation for boating while intoxicated. You want to be aware that you can probably get pulled over and detained just pretty much anytime you’re operating a boat. 

Please join us over the next couple of In Your Defense series as we talk about alcohol and boating.

We will be answering the following questions: 

  • What is the definition under a penal code of a water boat?
  • What is the legal standard for being intoxicated on a boat? 
  • Can you be pulled over or detained on a boat? 
  • Can the police search your boat? 
  • Can people drink while operating a boat? 
  • Can passengers drink while you are operating the boat? 
  • What are the penalties if you are arrested and convicted of boating while intoxicated? 
  • Can you have your drivers license suspended?

If you have been arrested for boating while intoxicated and have questions, let us know, and attorney Steve Toland or us here at Peek & Toland can help you. 

Posted in Criminal Defense

What is an Immigration Priority Date?

By Peek & Toland on October 7, 2020

What is an immigration priority date? How long do you have to wait? And what happens if there’s a significant change from one month to the next? Attorney Jeff Peek answers these and other questions regarding priority dates.

What is a priority date? 

The date that gets assigned to you when you file a petition for somebody to immigrate to the United States, it could be a family member filing for a family member or even a business or a company filing for a key employee.

Priority dates are essential when you are not, what’s called an immediate relative. Immediate relatives or people never have to wait. Immediate relatives include:  

– Spouses of U.S. citizens

– Children under 21 of U.S. citizens

– Parents of U.S. citizens

Others, such as spouses of permanent residents, brothers of U.S. citizens, have to wait depending on if an immigrant visa is available to them. That is equally true with employment-based petitions. In the employment-based immigration process, there are different wait times depending on the categories and the country. For instance, countries that are no stranger to waiting times on the employment-based are India and China. Some wait times there are substantial for the EB2 and EB3 categories. 

However, recently, there was a significant change in the visa bulletin for October for the EB3 category for India. There was about a five-year change. Many people from India are now asking if they can adjust their status to EB2. It’s vital to first talk to an attorney before filing the petition, but the answer to the question I most cases is yes. You can file a petition on an EB2 to downgrade it to an EB3 or file a new to petition a new I-140 to get classified as EB3 potentially. If your previous labor certification was in that priority date, pre-2015, you could adjust status immediately. 

How long do I have to wait? 

You can visit the visa bulletin here. Click on the most current month visa bulletin, scroll down, and find a chart based on family or employment-based petitions. Once you selected your category, it will also be broken down by country. If you can’t find your country, it’s because it’s lumped with the rest of the world in a different category.  

What happens if there’s a significant change from one month to the next?

Imagine if you were a beneficiary EB2 from India this month, and you didn’t realize that there was a considerable jump for EB3. You can lose the opportunity to adjust your status sooner than expected. Also, if you don’t take action within a year of that priority date, there could be some consequences.

If you have an immigration question, please don’t hesitate to reach out to us at 512-474-4445 or visit our website at www.peekandtoland.com.

Posted in Immigration

What Are the Rules Regarding Open Containers in Texas?

By Peek & Toland on October 2, 2020

With restaurants and bars being allowed to provide alcohol mixed drinks, beer, and wine to-go, it begs the question of what are the rules regarding open containers in Texas.

Texas still has one of the strictest rules governing open containers. Criminal Defense Attorney Steve Toland discusses four things you should remember regarding open containers in Texas.

1.What is an open container? 

It’s any receptacle that holds alcohol in it that’s open as or it’s had the seal broken off. An open container is also any amount that’s holding a beverage that’s been partially removed. So if you had like half of the contents of the bottle of wine removed, and then the cork stuck back, if an officer were to pull you over, you couldn’t then claim it’s not an open container.

2. It governs the whole passenger area of your vehicle. 

Many times, people think that if they’re over 21, and they’re in the backseat, they’re allowed to have an open container of alcohol. That is not true. It’s not correct. You’re still liable under class C’s misdemeanor laws in Texas, which is a non-jailable offense punishable up to $500. Therefore, anyone in the front or backseat is a restricted area for an open container.

3. It governs whether your car is stopped, parked, or operating on. 

All it matters is that you’re inside the car.

4. It governs when you are on a public roadway. 

That’s any area of ingress and egress a road, if you will, that’s publicly maintained.

However, there are two defenses or exceptions to the rules above. Number one, if the vehicle is for hire. For example, if you are over 21 and you’re renting a limousine or a party bus, you can have an open container. The other exception is recreational or camping vehicles—the passenger area restrictions are broader in that instance. The front area with the driver and the passenger in the front are restricted areas, but everything behind that in a recreational or camping vehicle is an exception to the general rule.

If you have any questions about alcohol-related offenses or any criminal liability issues, please contact Peek & Toland Law Firm at 512-474-4445 or visit our website www.peekandtoland.com.

Posted in Criminal Defense

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