“Congress shall make no law…” Most Americans can quote that line from the first amendment, as that amendment to the constitution encompasses the most basic liberties we hold near and dear in the United States, but what is really guaranteed and protected by this amendment, and where is the line when it comes to our right to peaceable assembly?
While there are some blurred lines and varied interpretations of our first amendment right to assemble peaceably to express our beliefs, there are some pretty firm rules concerning this amendment in the State of Texas.
No matter your political leanings, we all need to be aware of our rights and the laws concerning those rights if we decide to exercise our right to free speech and peaceable assembly. To that end, it’s also incredibly important to understand how to avoid a riot and avoid being criminally liable should you end up being involved with a riot. To better understand what is allowed in protesting, we need to know what is not permissible; so, let’s dive in to four laws concerning peaceable assembly in the State of Texas.
- So, what exactly is disorderly?
The laundry list of actions or activities covered under disorderly conduct is quite broad, to say the least, but there are a few big standouts for violations deemed as disorderly conduct:
- Watch your language – Engaging in any type of language, obscene gestures, or physical and furtive movements designed to incite a breach of the peace is considered to be a violation.
- Nix the tactical tools – In Texas, especially, we’re proud of our right to carry firearms. You’re well within your rights to carry; however, presenting a gun in a way that instills fear of safety if you use it in a manner that interferes with others’ civil liberties, you’re looking at criminal charges. While responsibly carrying your firearm for protection is acceptable, you’ll need to leave any smoke bombs at home.
- Location! Location! Location! – Time restrictions and permits to peacefully assemble are common sense when planning to protest, but did you know there are definite restrictions on where you can peacefully protest? Gathering at a funeral with intention to protest is strictly prohibited, as is peaceable assembly near critical infrastructure, which includes pipelines, natural gas, and oil. In order to obstruct a road or highway with your assembly, you’ll need one of those permits I mentioned.
2. What’s on the books about riots?
In the State of Texas, riots are specifically defined in our penal code as seven+ people gathered and engaged in an activity that is absolutely designed to or results in prohibiting others from engaging in their civil liberties. “Your rights end where mine begin” is an adage on which we rely in the U.S., and respecting the rights of others is just as important as asserting your own rights. Always remember that when your passions and emotions run high enough to take a stance.
3. You have an out!
So, you’re aware of others’ rights, and you know what not to do when you protest, but what happens if other protestors aren’t aware of the restrictions on riots and you inadvertently end up in a riot instead of a peaceful protest? It can happen in what seems like an instant, but the good news is that you have a way out of being held criminally liable should you end up in a riot without intending to be. Your “get out of jail free” card comes in knowing that the police need to first give you the opportunity to remedy the situation and remove yourself from destructive or intrusive action before they can arrest you.
4. Watch your step!
In the State of Texas, it’s very clear under the code that you are not allowed to disrupt in any way, shape, form, or fashion a lawful meeting. What does that mean? It means you’re completely covered by the first amendment to peacefully protest outside of a city council meeting or beyond the perimeter of the U.S. Capitol during an active session, but you are not permitted to protest with the sole purpose and design of stopping the governmental function. So, feel free to stand your ground, but make sure the ground on which you stand is outside of and in no way interrupts a lawful event.
These are just a few takeaways to consider before stepping out and standing up for what you believe, especially in the current heated political climate. If you have any questions about your rights or need to consult an experienced advocate to guide you through your defense, we’d love to help. Please tune in to our updates every Wednesday, and follow us on social media for up-to-date information concerning your rights and how we can fight on your behalf.
In the U.S., we’re quite proud of the fourth amendment, which protects us from unreasonable searches and seizures, but are we always able to envoke those rights of protection when it comes to searches and confiscation of our electronic devices? The short answer here is that invoking your fourth amendment rights is always encouraged, but it might not always be honored, especially at the border and airports. If that doesn’t sound like a clear answer, that’s because it’s not. There are several factors that go into protecting your devices and your private information they hold. Let’s take a high-level look at that.
Why should I care?
You may think you’re immune to unwarranted searches and seizures, but the sad truth is that anyone carrying cell phones or laptops across the border or through the airport is at risk to have their personal items searched and possibly confiscated. You also may be wondering how often those types of searches even occur, and you’ll probably be as shocked as I was to learn that Customs and Border Protection (“CBP”) performed over 40,000 searches of cell phones and laptops in 2019. With our devices tracking our every move, habit, and some may even say our every thought, it’s no wonder why the numbers of these types of searches continue to climb. Our electronic devices are ripe with information that legal enforcement officers would love to see, and they readily and warrantlessly do it, whether you’re a U.S. citizen or not.
Wait, how can this be?
The government has long maintained that our fourth amendment protections against warrantless searches hold no power at the border, but that doesn’t mean we’ve all accepted that as the end-all, be-all truth. In fact, there are several recent cases that put unlawful searches to test, including Riley v California, a Supreme Court case in which the Court unanimously determined that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional. While that sounds like a clear case of “no warrant, no phone,” there’s something referred to as border search exception, which claims exception to that ruling at border crossings due to a heightened need for security and high demand to search for contraband, even if there is no reasonable suspicion of nefarious activity. That doesn’t mean you have to accept that practice as part and parcel of border officials working to make the U.S. a safer place.
So what can I do to protect my private information on my devices?
As the courts continue to argue this far-from-settled issue, I can offer you a short answer to the initial question of whether or not a CBP officer can search and seize your electronic devices without a warrant or reasonable suspicion: sadly, yes. If you ever find yourself in such a situation, you could and should assert your fourth amendment rights of protection from unlawful searches and ask what the reasonable suspicion is for the search. While they’ll likely still search your devices if they’re so determined, you’ve established your rights and set yourself up for success in any lawsuit you file to reclaim your property.
I understand that those options, or lack thereof, are not very comforting, especially when you’ve not done anything wrong, or even if you have. It’s quite controversial, and we hope the courts will definitively sort this out with the right decision on those unlawful border searches. Until then, if you experience any search issues, criminal violations, or immigration needs, and you need an expert to handle those, please call us here at Peek & Toland. We’d love to help.
I’ve discussed in previous blogs some portions of your rights that are guaranteed under the sixth amendment, and there’s more to unpack as we attempt to maintain our rights in court while living under the changing COVID-19 restrictions.
What’s at risk here?
One of the most fundamental rights guaranteed by the sixth amendment, a right whose violation can drastically affect the outcome of your criminal case, is the right to confront and cross-examine your accuser and witnesses who are testifying against you. Appearing in person and being able to look witnesses in the eye is a basic right with foundations dating back to the very origins of our legal system in Rome and England, so I don’t speak lightly when I stress the importance of maintaining this right as you navigate the criminal courts.
Why is the Confrontation Clause important to me?
In the United States, you are guaranteed the right to confront, face eye-to-eye, and engage with your accuser or anyone offering testimony against you in an attempt to test their credibility. This understandably becomes an issue in the age of COVID-19 restrictions that affect travel, capacity restrictions, and whether witnesses are willing to appear in public places.
We look to a Texas case in the Court of Criminal Appeals to demonstrate the importance of asserting your full sixth amendment rights. Though recent, the decision in discussion and the rationale behind it occurred prior to the COVID-19 restrictions.
A high-level review of this case, in which a nurse practitioner conducted an exam that resulted in physical evidence and testimony against a defendant, is demonstrative of how the right to confront your accuser in person can completely shift the direction and outcome of your case.
As a result of the physical evidence and nurse practitioner’s testimony, the State needed to introduce evidence and the account; however, the nurse practitioner had recently moved out of state and was unwilling to return to Texas to testify in person. Despite this witness’s unwillingness to return to testify in person, the judge hearing this case astonishingly allowed this witness to appear via video and deemed the collected physical evidence permissible. As a result, the Defendant was convicted but was able to fight the conviction in the Court of Criminal Appeals.
This brief account is not simply anecdotal—it provides three very important factors that were key to the decision made, key factors that are takeaways you can apply moving forward in the courts in the age of COVID-19:
Subpoena! Subpoena! Subpoena!
Our first takeaway from this case to note is how perturbed the Court of Criminal Appeals was by the attorney who did not subpoena the witness in question. If you are facing criminal charges, make certain that your attorney subpoenas all of your witnesses. Doing so introduces the threat of contempt and subsequent punishment to any witness unwilling to appear, and it helps ensure the right to confront a witness.
Never hesitate to challenge or question the reasons a witness gives for resisting their appearance in court. Your confrontation clause rights allow you to demand a witness appear, despite any fears of COVID-19—it’s perfectly acceptable to remind that judge that the courtroom being safe enough for some means it is safe enough for witnesses to appear. Feel free in your rights to ask what safety procedures are in place if the courts adopted face mask requirements, and whether or not they are respecting the six-feet minimum distance guidance to assert your right to have witnesses appear in person.
Demand swift justice
Another important aspect of this to remember is that you must continually assert your right to a speedy trial. Despite executive orders, gubernatorial decrees, and country restrictions due to the pandemic, you still have every right to a speedy trial and to not linger in limbo waiting months on end for your time in court. You must let your attorney know that you assert your rights to a speedy trial and refuse to agree to anything that attempts to deny your right to speedily complete your case.
Your sixth amendment rights covered here are so fundamental to your receiving a fair trial during the pandemic, which is all the more reason for you to have an experienced attorney who knows how to assert those rights and apply facts and arguments that will help support you.
If you have any questions about your rights or need a trusted advocate for your defense, we’d love to help you take control of your criminal proceedings and ensure that every right afforded to you is met in abundance.
Please tune into our updates every Friday and follow us on social media for up-to-date information concerning your rights and how we can fight on your behalf.
In the United States, we take immense pride in our criminal justice process and wholly depend on our constitutional rights to ensure justice and objectivity when facing accusations and criminal charges. It is a common rationale that nobody, not even the government, can strip from us those rights guaranteed by the Constitution; however, there are certain circumstances in life that can affect those rights, and the COVID-19 pandemic is one of those events currently having a negative impact on our sixth amendment rights.
How am I to appear in public?
Before COVID-19 hit the U.S., appearing in public places was not really considered a luxury. Now, though, the threat of this virus has placed more burden on us than just limiting our holiday gatherings and restricting our ability to see movies in the theater. With a long-standing backlog in criminal courts and new, ever-changing COVID-19 restrictions, court administrators are grappling with how to keep up with cases while also ensuring our sixth amendment right to a public proceeding. Appearing in public for a hearing is one of our nation’s bedrock principles. Anything that interferes with that is a major issue with which to contend, in addition to fighting criminal charges and accusations you may face. To combat the restrictions on our courts and public assembly, many judges have turned to live-streaming hearings, including creating dedicated YouTube channels and Zoom meetings. Of course, as we’re all aware by now, these virtual hearings come with their own set of complications, including hackers and technological interruptions. Who doesn’t love a good laugh at someone forgetting their mic is on during an inopportune time? But when it comes to fighting criminal charges, these technological issues are no laughing matter, especially when they interfere with the very foundations of our criminal justice system.
What does speedy mean in the era of COVID-19?
Another aspect of our sixth amendment right on which COVID-19 is wreaking havoc goes hand-in-hand with a public trail, and that is your right to a speedy trial. As mentioned, and widely reported, court systems are overburdened with a backlog of cases. Fighting for your sixth amendment right to an expedited hearing was a battle to fight prior to COVID-19. It’s now more important than ever to have an experienced attorney in your corner to ensure your rights are upheld in the chaos of COVID restrictions on our courts. In the State of Texas, speedy, in court terms, is generally held to be eight months, as a minimum. This, of course, is provided your attorney files on your behalf a speedy trial motion and consistently maintains your position that you would like to proceed forward with trial. Executive orders and any gubernatorial orders that relegate the performance of our court systems weigh heavily on the ticking of that speedy trial clock and can definitely work to your disadvantage. You must have an experienced attorney to reassert your sixth amendment rights, even if the judge overseeing your proceeding appears to be powerless as a result of city, county, or state restrictions related to the pandemic.
What about my right to confront those accusing me?
If we’re concerned with public gatherings, travel, and the ability to appear in public hearings, it is only logical that our right to confront those with evidence against us is also in jeopardy, along with the other guarantees of the sixth amendment mentioned here. In addition to who can appear in our courts during a pandemic and how, we’re also left contemplating how safety measures affect our right to face our accusers. How will a judge, jury, witnesses, and attorneys wearing a mask challenge our sixth amendment right to a confrontation? Could this be the veil of secrecy about which our forefathers warned us when fighting to ensure our rights? What safety protocols can survive our constitutional rights? These questions have left our legal scholars scrambling for answers, so you certainly shouldn’t be left alone to contemplate and ensure your rights.
While governors’ orders and safety restrictions may be at odds with our Constitution, we know that removing the right to a confrontation and a speedy, public trial would, in fact, require a constitutional amendment. Until then, the court systems place the burden on you to ensure your rights are upheld and justice is within fair reach throughout your proceedings, even during a pandemic. There’s absolutely no reason for you to ever wage that war on your own.
At Peek & Toland, we’d love to help you take control of your criminal proceedings and ensure that every right afforded to you is met in abundance. Please tune into our updates every Friday and follow us on social media for up-to-date information concerning your rights and how we can fight on your behalf.
How can I adjust my legal status?
There are many paths to take to obtain various visas and absolution of undocumented status, and people often wonder whether or not their employer filing on their behalf is one of those options, especially if the employee in question is undocumented. There are many work visas that employers can use, but whether or not they apply to employees here unlawfully, illegally, or without status in the United States is the brass tacks of what many immigrants want to know. Unfortunately, the answer is complex.
One of the most difficult endeavors in immigration law is the pathway from having no status, expired status, or being undocumented. No matter which way you identify, changing from that status into a legal status can be quite complicated. In fact, transitioning from illegal to legal status can sometimes be an impossibility; however, there are a few ways that a person might be eligible to make that difficult transition and adjust their status to permanent residence in the United States.
Of the many avenues people take to adjust their legal status, one of the oldest is under section 245-I. We don’t often see this option, as it’s been such a long time since it’s last been renewed. The last time USCIS renewed this ruling and made it available was nearly twenty years ago. To be eligible for this rule, an employer would have had to file an application on behalf of the undocumented employee before April 30, 2001, with the employee being physically in the United States by December 17, 2000. With the length of time that has passed since the 245-I ruling was an option, it’s understandable that we don’t often meet many people who fit those requirements. In the off chance that you do, or you are a beneficiary under somebody who benefited from section 245-I, that application serves as a waiver, or a perdón, as we say in Spanish.
Are you willing to return home for a chance to legally come back into the United States?
Another opportunity to adjust legal status is one that requires your willingness to return back to your country so you can apply for a waiver for a non-immigrant visa, such as any work visa, but only if you first go back to your country. The problem is that there is no guarantee of success, so there is a bit of risk involved in returning to your native country. For most people, though, the risk does not outweigh the possible reward, as many people who’ve lived here for years and know no life outside of what they have made in the United States—homes, children in school, deep ties to their community. Without knowing with certainty that they’re going to get approved for that waiver, traveling back to their native country is simply out of the question.
Could you be eligible for a work permit?
There is an option for which many people are eligible to adjust their legal status, which comes in obtaining a work permit. Remedies such as U-visa, DACA, or VAWA allow an eligible undocumented person to obtain a work permit through these limited programs, even if that person illegally entered the United States. Each program has its own set of requirements for eligibility that we’d be happy to discuss in detail with you.
Separate from a pathway to citizenship or legal standing is the possibility of obtaining deferred action. If you or someone you know is a young person who came to this country, DACA may be an opportunity about which you may want to speak to a lawyer.
Victims of Violent or Domestic Crimes
If you or a loved one has been a victim of domestic violence with a spouse who is a permanent resident or US citizen, it’s very much worth discussing your options with an immigration lawyer who can help you identify the best and safest means to stay in the United States.
If you have been a victim of a violent crime and you cooperate with the police and prosecutors, you may be eligible for U Visa. Whether or not you know who committed the violent crime against you or if either of you is undocumented is irrelevant.
Those are all different pathways to take without having to leave the country.
Overstaying Your Visa
Another predicament immigrants may find themselves in is having overstayed their visa, failing to return to their native country when they were supposed to have done so. This happens, and it’s usually for a lengthy period of time that the person has overstayed their visa. Most often, an employer is unfortunately not able to file for their employee to rectify this particular situation. As mentioned, unless you qualify for one of the options mentioned previously, there just are not many options for people who are undocumented to transition from undocumented to visa status legally within the United States, even if they have an employer who is willing to cooperate and work on their behalf. Simply put, it’s not as easy as you would think.
The options discussed here are just a few of the ways a person can work to adjust their legal status. If you think you might be eligible for one of the programs discussed here, it’s more than worthwhile to talk to a lawyer to see where you stand. As an immigration attorney, the need would be to evaluate various details about your background and your immigration history to make sure that we account for all of the possibilities and scenarios that could make you eligibility for adjusting your legal status or deferring action against you.
At Peek & Toland, we’d love to help you gain peace of mind and take steps to rectify your legal standing. Please tune into our updates every Immigration Wednesday or follow us on social media for up-to-date information.
What do you do if you’re at a port of entry or an airport and a CBP immigration officer accuses you of making a misrepresentation or a fraudulent claim? What do you do next?
Immigration law has a strict punishment if you make a willful misrepresentation or fraudulent statement to immigration. A misrepresentation is when you knowingly or willfully misrepresent a material fact to obtain a visa or admission. A material fact is any statement that if immigration had known the truth, they would not have granted a visa or entry to the United States.
Material fact example
For example, a material fact can be when somebody who traveled before on a tourist visa, overstayed had a child here. They went back to their country to renew their visa but did not mention they have a child because it would be evident that they overstayed.
Example of non-material fact
We had a case recently where a Canadian client told immigration he was coming on a tourist visa to pick up his car in the United States and drive it back to Canada. Immigration allowed him ten days to go to the U.S. to pick up his car. He flies in the United States, but the client decides to leave the car and just flew back. He left before the ten days that he was given. However, the next time he talked to immigration officers, they were bothered by the fact that the purpose of his entry was to pick up the car. Was that a material fact? No. It had no bearing on whether or not he would have been admitted to the U.S. It was just a small change in plans once he got here. But you can find immigration officers making a case that something was material when it wasn’t.
Did you knowingly do it? Did you say something that you knew was wrong or knew was a lie, or did you say something that you unknowingly know was not true? That could be potential questions that your attorney has to review.
False Citizenship Claim
There is one kind of claim that there is no waiver for, and that is a false citizenship claim. You cannot do that in immigration law because it’s the harshest punishment. You don’t have the possibility for a waiver. The only exception of that is if you have two citizen parents, and you just thought you were a citizen by nature of the fact that they were a citizen. It’s imperative to know that is one colossal disqualifier.
1. Immigrant Visas
People with these visas want to immigrate to the United States. They are usually attaining the visa through family or work. The purpose of coming to the United States is to become permanent residents.
The immigrant waiver for misrepresentation for an immigrant visa is stricter than the non-immigrant one. Why? Because you have to have a U.S. citizen or permanent resident spouse, or a U.S. citizen or permanent resident parent to qualify. If you are the parent of a U.S. citizen or permanent resident, and you do not have a citizen or resident spouse, you are not eligible for this waiver.
You will also have to show crucial evidence of extreme hardship. This is not just a given.
2. Non-immigrant visas
These are people coming on temporary visits such as tourism, as a student or for work. These people come knowing that they’re going to pass the time here. It could be a year or three years, but eventually, they will have to leave the country.
Non-immigrants will need to fill out form I-92. It can be processed either at the consulate or ports of entry, usually in Mexico or Canada. It can take 5-6 months through the consulates. It could be 4-5 months at the port of entry. Therefore, you will need to do it in advance of your plan travel to make sure you have enough time to adjudicate when you want to come in.
Non-immigrants are not required to show extreme hardships.
There is a kind of a three-prong test to be granted the waiver:
- Is there a risk or harm to society if they let you into the country?
- How serious was the prior immigration violation or criminal violation?
- What is the importance of the reasons for seeking entrance to the United States?
However, luckily they’ve ruled that there is no requirement that your reason for entering the United States be compelling. So you don’t have to have some super important reason.
These are tricky waivers. I would advise you to consult with or hire a lawyer to help you prepare for them. They’re not easily given.
Now that elections are over and President Joe Biden has been elected, will DACA be reinstated? Will you be able to apply for DACA?
Attorney Jeff Peek discusses how President Joe Biden and his Administration will impact DACA recipients, how to know if you are eligible for DACA, and how you can start preparing for when he takes office in January 2021.
Joe Biden has won the elections, and he is set to take office on January 20, 2021. Everyone’s question is, what’s going to happen with DACA? The great news is that the Biden Administration has already announced they have plans to reimplement DACA as it was back under the Obama administration. They will start accepting new applications.
As you might recall, very shortly after President Trump entered office, they announced they’re going to stop accepting new applications. We’ve been under that for almost two years.
Furthermore, the Biden administration has hinted at the possibility of even expanding DACA. We’re excited to see what’s going to happen. For now, we know they’re going to re-accept new applications.
Who is Eligible for DACA?
1. You have to come to the United States before you’re 16.
2. You have to have been in the United States before June 15, 2007 and stayed in the United States since that time.
Let’s clarify one point. Let’s say, for example, you came come in the United States before you were 16 but left and then came back before June 15, 2007. When you returned, you were already 16. Would you qualify? The answer is yes. If you had an entry before 16, as long as before June 15, 2007, it would count.
3. You have to be in the United States when they implemented DACA, which was June 15, 2012. You cannot have been on a visa at that time.
4. You have to be either in school, graduated, or have a GED.
GED stands for General Educational Development. It’s a test you can take to prove that you’ve mastered the knowledge. Now, a lot of people say, “I dropped out and never finished school; I’m not eligible anymore?” Wrong. You can enroll even as an adult. We’ve seen people as old as 29 enrolled in a GED program, and that counts. You don’t have to get the diploma; just be enrolled in the program.
5. You can’t have any disqualifying criminal convictions.
The most common disqualifying criminal convictions are DWI, more than three misdemeanor convictions, 90 days in a jail sentence, domestic violence, or any felony would disqualify you. There a lot more, but these are the most common ones.
What can I do right now?
Well, you can get prepared. January 20 is right around the corner, and you don’t want to wait until the last minute. We recommend talking to an immigration attorney to make sure you’re eligible and discuss the process. Start gathering all the documents you will need, such as proof of residence since 2007.
We’d love to help you here at Peek & Toland. We’re excited for all you young people who are eligible for DACA. We’re excited about the possibility that it might even get expanded. Please pay attention to our updates every Immigration Wednesdays or follow us on social media for up-to-date information.
Board Certified Immigration and Criminal Defense Attorney Jeff Peek discusses how the possession of marijuana can affect your immigration status.
If you are not a U.S. citizen and have a drug conviction, such as possession of marijuana, you can face deportation or be inadmissible to the United States.
We continuously see this issue of non-U.S. citizens, such as permanent residents or those here on student or work visas, that enjoy using marijuana. However, they don’t realize the legal consequences if you are an immigrant.
There are now more states legalizing the use or decriminalizing the use of marijuana. It’s beginning to increase as more people are using it. But there are still States, like here in Texas, where it is still illegal to have marijuana in your possession or THC products in your possession.
So what happens if are a non-U.S. citizen and you get arrested for possession of marijuana?
As one side of the law begins to legalize marijuana, you have to know that the Federal Immigration Law still views all illegal drugs, including marijuana, as a problem for immigrants. If convicted, you can get deported or become inadmissible.
What is the difference?
Federal immigration law says, if you are here in the United States and have one conviction for marijuana under 30 grams, you may be able to avoid becoming deportable. However,, you will automatically be inadmissible to the United States.
What happens if you are inadmissible?
Inadmissible means that you can be denied entry to the United States if you leave the country and try to come back. For example, if you have been a permanent resident for many years but get a conviction for a small amount of marijuana under 30 grams, and you decide to travel outside the U.S.. When you come back into the country, immigration can deny your entry and you will be placed into removal proceedings.
If convicted, what do I do?
Anytime you have a drug charge or are accused of possession of any drug, even marijuana, you need to talk to immigration and criminal defense lawyer right away. Jeff Peek is a Board Certified Immigration attorney with over 20 years of experience in immigration and criminal defense.
You have to have a lawyer that knows both sides of the law, one that can counsel you through the criminal defense, but that also knows immigration laws so they can best protect you.
What if where I live is legal to smoke marijuana?
Now, if you’re in a state where it’s legal, you’re in a different position. You’re not going to be convicted because it’s not a crime anymore. However, under Federal Immigration Law, there’s another statute that states if you’re considered an addict or admit to committing a crime, you could potentially be inadmissible as well. Therefore, you’re not entirely free, although there is a lower risk of being charged with a crime.
Please let us know if you have any questions or if you or a loved one is faced with a drug conviction. We are always happy to help you.
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Over the last 20 years, criminal defense attorney Steve Toland has counseled families during difficult times involving their minors and alcohol. Today, Steve wraps up his Minors & Alcohol in Texas series with four tips for parents to discuss alcohol with their minors.
1. Explain to them what the law is.
Often, children go off to college, and there are parties where alcohol is freely served and forget that underage drinking is still against the law. So, what is the law? If you are under 21, the law states you are not allowed to consume alcohol, and you cannot possess it. That means touch it, hold it, or be immediately accessible to alcohol.
2. Identify areas of risk for them
It’s vital when kids start going to high school parties or ride around in cars with others to be aware of the scenarios where they could be charged with alcohol possession. Some risk areas are tailgate parties, football games, house parties, in a car, at a nightclub, being outside a house holding a drink for a friend, etc.
3. Teach them about constructive possession.
Constructive possession includes touching alcohol, in control of alcohol, or an immediate reachable area of alcohol. For example, you are in a car, and there’s a 12 pack of beer, anyone who has access to that alcohol, even if you’re not actively holding it, could be charged with minor in possession through the doctrine of constructive possession. Another typical example is when you’re at a table, and there’s a pitcher of beer, and there are cups around. Even if you’re not holding one of the cups, a minor can be charged.
4.Talk to them about the emergency medical exception.
If a minor is scared and thinks that they or a friend has had way too much to drink, they can notify emergency personnel and not be charged. However, you must call and wait for help to arrive and cooperate by telling the truth. If a minor does all that, they will not be liable under the criminal charge of minor in possession or minor in alcohol consumption. Even if they have alcohol on them or have consumed alcohol, they can be immune from that liability.
The emergency medical exception is very important for minors to know, so they are not afraid to ask for help when they believe that they or a friend is in danger of alcohol poisoning.
If you have any questions about these issues or need help with your minor on applying for college if they have a record, reach out to us here at Peek & Toland, we’re always glad to help.
Criminal Defense Attorney Steve Toland continues his series about Minors and Alcohol. Today he discusses minors in possession of alcohol.
Last week he discussed the rules of underage drinking and the consumption of alcohol. Today he discusses what it means to have possession of alcohol, where minors are most at risk, and how a minor could be charged with alcohol possession in Texas.
If you’re under 21 and you’re outside of parental or guardianship supervision, you’re not allowed to possess alcohol in any way. Pretty straightforward.
We know that kids under 21 don’t always think these things through, so they need to note where they are most at risk.
The most obvious is a night at a nightclub. There are clubs where 18 and older are allowed to enter. If they’re sitting at a table and there’s alcohol, they can be accused and charged with that.
Other common places are a car, a fraternity or sorority house, tailgating, social gathering, or a school event. Any of those scenarios are areas minors should be aware of the potential risks of being charged with alcohol possession.
How do they prove this? It’s through this essential element of the crime known as constructive possession. If you’re touching it, if you’re in control of it or an immediate reachable area, it can be a possession of alcohol. For example, or if you’re at a table and there’s a pitcher of beer and cups scattered, they’re going to view that as constructive possession. If you have the reachable ability to possess that alcohol, a police officer will likely charge you with a minor in possession.
The penalty range is just the same for other class Cs that we’ve talked about with alcohol. It’s up to a $500 fine. It’s not a jailable offense. However, it can stay on your record. Many applications like college, grad school, and even employment are now asking if you’ve had any contact with law enforcement, and that includes a citation.
As always, if you have a loved one that is struggling with this issue, or has questions about minors in possession or consumption of alcohol, reach out to us here at Peek & Toland.