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Four Tips for Parenting Minors About Alcohol

By Peek & Toland on November 13, 2020

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.

Minors in Possession of Alcohol in Texas: What You Need to Know

By Peek & Toland on November 13, 2020

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.

The What 

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. 

The Where

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.  

The How 

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.

Do Immigrants Increase Crime Rates in Texas?

By Peek & Toland on November 11, 2020

In the past couple of years, there have been comments made by the President that have made people question whether immigrants, specifically illegal immigrants, increase crime rates in the United States.

Immigration attorney Jeff Peek discusses the data recently published by CATO Institute that studied Texas data regarding illegal immigrants and crime rates.

In a recent Gallup poll, 42% of respondents said, yes, illegal immigrants increase the amount of crime in the community. 50% said they didn’t think so. And 7% said they thought they decreased the amount of crime. So what is the truth?

There is interesting work being done over at the CATO Institute, analyzing data out of Texas. The data shows the conviction rates per hundred thousand population.

Here are the findings:
535/100,000 are legal immigrants
782/100,000 are illegal immigrants
1,422/100,000 are native-born U.S. citizens

Interestingly enough, the lowest crime rate for a hundred thousand conviction rates is legal immigrants. The next highest category is illegal immigrants, which leaves with the staggering interesting thought that native U.S. born citizens in Texas are more likely to commit crimes than their legal and illegal immigrant counterparts.

In some sense, you can say the myth that illegal immigrants are more likely to commit crime compared to U.S. citizens or legal immigrants is somewhat untrue.

To be fair, when people talk about statistics, they like to shine a light to present their arguments the best way. The counter-argument is that every person illegally present in the United States is committing a crime under federal code. And that is technically true. But we are focusing on property crime, violent crime, drug crime, the crimes that affect us in our daily lives.

It’s important to note that these are based on estimates because we don’t technically know the full number of illegal immigrants in the United States. We make guesstimates based on all sorts of data. It could be possible that the illegal immigrant population is much lower than we estimate. If that were true, then this number would go up. But most people who study this believe if anything, we’re probably undercounting or underestimating the number of illegal immigrants in the United States.

You can view this information right now at cato.org/workingpapers and draw your conclusions. But we must speak honestly about the value that immigrants bring to the country.

There are other studies out there. One example found out that by the DACA passage, they saw the crime rate go down when you offered immigrants the opportunity to have a work permit. When people are here legally allowed to work, they’re less likely to be involved in crime.

Now that doesn’t mean there aren’t any immigrants committing a crime. As the report shows, both legal and illegal immigrants commit crimes, but it is not what the President has painted it to be. It’s always essential to have real information and real data and not just listen to false statements.

You can find CATO’s publication here: https://www.cato.org/sites/cato.org/files/2020-10/working-paper-60.pdf.

If you have an immigration question, please don’t hesitate to reach out to us at 512-474-4445.

Visa vs. I-94 Expiration Date: How Long Can I Stay In the United States?

By Peek & Toland on November 4, 2020

Many people often get confused about which date controls their ability to stay lawfully in the United States. Our clients often ask what the difference between a visa expiration date or an I-94 expiration date? Which one controls my ability to stay in the United States?  

It is essential to differentiate and know which date allows you to maintain a lawful presence in the U.S. The worst thing you can do is overstay and begin accumulating unlawful presence.

I-94 

Generally, the I-94 is what governs the time in which you are allowed to stay lawfully inside the United States. You’re given this upon every entry into the United States on a non-immigrant visa. Now, recently they moved to not issuing the little white cards. Instead, you have to go online with your passport information to find out the date. I-94 usually controls the time frame you are allowed in the United States. We say “usually” because there can be instances where it does not control your stay, which we will explain later in this article. 

Visa 

The visa is the actual document you’re given that allows you to present yourself at a port of entry or an airport and seek admission into the United States. However, you have to remember that just because your visa expiration date is far in the future does not mean that it is the date or time you’re allowed to have status inside the United States. A classic example of this is a tourist visa. Most tourist visas are given for ten years. However, that doesn’t mean you’re allowed to stay inside the United States for ten years. It means that you can present yourself at an airport or port of entry for the next ten years and ask for entrance to the United States under the status. If they allow you entry, they will give you an I-94, and the date on there will determine how long you can stay in the United States. You also have to keep in mind that they can deny you entry, even though you have a visa.  

USCIS Approval Notice 

Anybody inside the United States has to have status. You cannot have status outside the United States. Sometimes people look to change or extend their status from inside the United States by filing a petition. In that case, you might have a unique circumstance where if your new petition for change of status is approved, then that date controls your lawful presence. Not your I-94. 

Likewise, you can have the reverse scenario where you have an approved petition approval notice for a far-off date. But when you leave the country, come back in for different reasons. It could be something called reciprocity. The officers at the port of entry give you less time on your I-94 to be in the United States than the time you have in your petition notice. Which one of those two control?

Here’s a general rule that you can always pretty much take to the bank. 

The document that controls your status is the one most recently issued. 

If there’s a conflict between documents, whether the I-94, your petition approval notice, you go with the one that was most recently given.

The worst thing you can do is overstay your permission and begin accumulating unlawful presence, which could potentially block you from getting visas in the future. And even worse, you could have a bar of up to 3 or 10 years if you overstay. 

Please don’t hesitate to reach out to us for any questions at 512-474-4445.

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.

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.  

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.

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.

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. 

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.

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