Criminal Defense

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

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 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 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

What You Should Know About Alcohol To-Go During the Pandemic

By Peek & Toland on September 25, 2020

As a wise person who once said, “In troubled times, you just need to know when to give up and have a margarita.” I think we can all relate to that. 

Attorney Steve Toland begins a new series breaking down the Executive Order that Texas Governor Abbott released in March about alcohol to-go during the pandemic.

On March 19th of 2020, he issued an executive order that over-read previous rules from the Texas Alcohol and Beverage Commission about alcohol to go from restaurants, but it spurs many questions that we’ve received frequently since. 

There are four things you should remember about the alcohol to-go in Texas. 

1. It only protects you for manufactured sealed alcohol. 

The alcohol needs to stay in the original container, which the manufacturer put it in. Restaurants cannot make their alcoholic beverage and put it in a styrofoam cup and put some scotch tape over it. Now they can make the cocktail mix that goes with it and sell that as a separate item, but they can’t sell the alcohol themselves. It has to be in its original sealed manufactured container. 

2. It applies to a certain volume of alcohol it’s 0.375 milliliters of alcohol.

Similar to those airline bottles, the tiny ones. You can’t go and get a bottle of service from a restaurant.

3. You have to purchase food with alcohol. 

Restaurants cannot turn themselves into a bar and start just selling liquor to-go. They have to sell you food as well, or you have to purchase food as well.

4. It doesn’t change the rules for those restaurants or bars that already had previously obtained specialty licensure from TABC to sell beer, to-go, or wine to-go. 

Those places are still in effect, but those rules don’t apply because they already had previous permission to sell. 

Those are the four things you should keep in mind about alcohol. It is legal. However, don’t forget, open container rules still apply. So you can’t take your little miniature bottle of alcohol, mix it, and then drive with it home. That would be a violation of class C violation in Texas of an open container rule. 

We’ll talk in future episodes of In Your Defense about the open container laws in Texas. 

If you have any questions about alcohol-related offenses or any criminal liability issues whatsoever, please reach out to us. 

Posted in Criminal Defense, Interesting

Crash Runners: Why You Should Always Stop After an Accident

By Peek & Toland on September 16, 2020

Most people are not clear about Texas Law after an accident, and many choose to run away from the scene. Many run in fear because they are undocumented or because they don’t have a license. Most don’t know that an accident is a civil offense if you are not under the influence or reckless driving. But as soon as you run from the scene, it is a criminal offense. 

Attorney Jeff Peek discusses Texas’s law regarding what you should do after being in a car accident.  

  • What happens if you hit a parked car? 
  • What’s the difference in legal penalties if you are involved in an accident and are minorly injured vs. seriously injured or killed? 
  • What are the liabilities or the potential levels of criminality if you leave the scene? 
  • What if you are an undocumented immigrant? 
  • What should you do if you left the scene?

What should you do if you hit a parked car? 

You have to stop to check to see if there are any damages. If there is, you have to try to inform the owner of the car that you hit their car. No matter if you were at fault or not. If the owner is nowhere to be around, you have to leave your identifying information, insurance information, and driver’s license. If you’re in a store, you may want to go inside and inform the store. Make a reasonable effort to try to notify the owners of the car. You can always call 311 as well, so you don’t necessarily have to wait at the scene, but you certainly want to document that an accident occurred. If you do that, you’re not committing a crime.

Consequences of leaving the scene 

If you leave the scene and the damages are under $200, you get a ticket. If it’s over $200, it’s going to be a class B misdemeanor. Now you’re looking at potential jail time and a fine, probation, among other things, all because you didn’t stop. If you would’ve taken the time to stop and leave information, it would only be a matter of insurance resolving.

What happens if a person was seriously injured? 

If a person is seriously injured and you left the scene, the penalty increases to a third-degree felony. If somebody dies, it can jump to a second-degree felony. Again, it isn’t necessarily a crime if a person is injured. The crime begins when you leave the scene. If you stay and help somebody seriously injured, there’s no crime. 

There are obvious situations that are not the case, such as driving while intoxicated because of alcohol or drugs or driving super recklessly at high velocities and changing lanes dangerously. Those situations are extreme negligence.

Undocumented Immigrants 

Undocumented immigrants might be fearful they’re going to get deported. If you’re an immigrant, you should stay, and you get a class C ticket for no driver’s license and be at the scene, then to run and receive a felony. You are more likely to be deported with a felony than being involved in a civil accident. 

What should you do if you left the scene?

Call a lawyer immediately. Even if it’s in the middle of the night. There are lawyers like us, who will answer their phone at any time of the day. Let them know the situation to start mitigating the risk and danger to your case, and ensure you don’t dig yourself into a deeper hole than you’re already in. There may be things we can do that actually might help you get out of the hole. It just depends on your situation. 

We don’t advise you to leave, but if you’ve already done it, call us as quickly as possible to avoid future crimes and possibly mitigate punishment later.

Posted in Criminal Defense, Immigration

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Expunctions: Why You May Need One

By Peek & Toland on September 4, 2020

The job market is as competitive as it’s ever been.

One of the most important things you can do when you’re applying for a job or when you’re applying for advancement in your own company is to make sure that you don’t have anything from your past showing up on your background check or records.

The next few articles in this series will discuss expunction and the expungement and non-disclosures process.

This process ensures that your past doesn’t come back to haunt you.

In other words, if there’s anything in your past that you thought you had taken care of, that it’s still not showing up on your record.

A Quick Expunction Story

I had a client who was in the financial sector industry and was up for a huge promotion. Part of the promotion required this person to apply for some additional certification in the financial sector industry, which is highly competitive in and of itself.

Unfortunately, this person had forgotten that 15 or 16 years ago when he was in college, he had foolishly stepped out into an alleyway and decided to urinate in public. Obviously, this was a terrible idea.

It was only exacerbated by the fact that he was arrested and charged with public lewdness, a crime analogous to a sex act. That’s a class A misdemeanor.

When it was all said and done, this individual had taken care of a class C ticket for, for minor in consumption of alcohol and disorderly conduct for urinating in public.

He thought his bad judgment and the paper trail that followed were all taken care of some 16 years ago. However, this was unfortunately not the case.

Unfortunately, the classification or the coding of that original charge still showed up on his record as public lewdness – a sex crime.

This obviously looked terrible on his record. Our firm went back and fixed these charges through an expungement process and were able to help this person fix his record.

However, the cat was already out of the bag.

This poor individual experienced collateral damage to his reputation in the company, which our firm had to fix for him as well.

This story just highlights the importance of reviewing your record and ensuring there’s nothing on your record that could come back and haunt you.

Up Next: The Expungement & Non-Disclosure Process

Over the next couple of blog posts, we’ll talk about the eligibility and the process for expungements and for non-disclosures in Texas.

As always, if you have any questions about this process or any skeletons in your closet you need to make sure are wiped away, be sure to reach out to our firm. We help clients clean up their past records in preparation for job interviews, background checks, and other important life events.

Posted in Criminal Defense, Expunction

4 Facts About Marijuana Penalties in Texas

By Peek & Toland on August 28, 2020

Attorney Steve Toland wraps up his series on THC infused products and marijuana laws in Texas. Today he discusses four facts regarding marijuana penalties here in Texas.

1. Marijuana is penalized the same it’s classified.
It’s classified by its descriptions, a green leafy substance, and its weight, which includes the leaves, stalk, and the stem. If it’s four ounces or less, it’s still a misdemeanor in Texas. If it’s a bit over four ounces up to five pounds, then it’s in a range of felonies from state jail felony to a first-degree felony.

2. THC infused products start at a felony.
Those include gummy bears, vape pens, cookies, brownies, all of those things. All of them start at a felony. The reason for that is that Texas quantifies THC products as penalty group two. That is the second-highest penalty group for controlled substances. And for that reason, any THC product, even a single gummy bear, starts at a felony.

3. THC infused products are quantified by their weight, which includes adulterants and dilutants.
The weight includes adulterants or dilutants, so that’s all the other ingredients that go into making the product, for example, a pot of brownies will consist of the weight of the eggs, the flour, the chocolate, etc. That extra weight could very well be a first-degree felony amount, and it’s a simple pan or pot of brownies. Many people, particularly young adults, who traveled to Colorado and came back to Texas, don’t realize that they could be committing a felony just by possessing those things.

5. The amount of THC products can be considered a controlled delivery.
In Texas, we have possession of controlled substances and then possession with intent to deliver. It is often based on the quantity of its usable amount for an individual or is it for more people. The more you have, the more likely you could be charged with a first-degree felony.

As always, if you have any questions about marijuana, THC products, or you know someone who was charged with something like this, reach out to us, we’d be glad to counsel you through it.

Posted in Criminal Defense, Drug Crimes

THC Infused Products and Marijuana Laws in Texas

By Peek & Toland on August 21, 2020

Attorney Steve Toland continues his discussion about THC infused products and marijuana laws in Texas. Today he discusses one of the biggest misconceptions about THC infused products.

Colorado is one of the states where marijuana products are legal. If you were to purchase a gummy bear, a cookie, a vape pen with THC oil, a brownie, any edible products, and you bring those back to Texas, you are committing a felony. 

Every single product, no matter how innocuous or small gummy bears included are felonies. They start at a state jail felony and go all the way up to a first-degree felony. Many people don’t realize that, but that’s one of the more significant misconceptions about the new marijuana laws and THC. 

So how did, how did that come to be? 

Well, it starts with the definition of marijuana. In Texas, marijuana is defined by the description of its appearance, its texture, its odor, it’s a green leafy substance. THC oil though, is the oil that’s extracted from the plant itself. The oil has THC, the psychoactive component that gets you high. And it has it at such highly concentrated levels that the legislature in Texas ascribes a penalty group to assessment to that. 

If you have any questions about drugs at all, quantities amounts, marijuana charges. Reach out to me attorney Steve Toland or us here at Peek & Toland. We’re always glad to help.

We hope you’ll join us again on In Your Defense as we’ll wrap up our series on marijuana and cannabis, and we’ll talk more about the penalty ranges. 

Posted in Criminal Defense, Drug Crimes

3 Misconceptions About Marijuana Laws in Texas

By Peek & Toland on August 21, 2020

Attorney Steve Toland begins a series about marijuana laws in Texas, which are surprisingly confusing, mainly because there’s THC oil and THC infused products out there. Many of us get confused about what’s legal, what’s illegal, what’s a misdemeanor, what’s a felony. 

There are many misconceptions out there. Here at the top 3 most common misconceptions: 

1. We’re not aware of the difference between hemp and marijuana. 

Marijuana is still illegal. Texas defines it as just that green leafy substance in and of itself. However, hemp is just like marijuana, but it has a THC component of 0.03%, or lower THC is tetrahydrocannabinol, THC for short. It’s the psychoactive component that gets a person high. And so Texas legislature and its infinite wisdom said hemp has such a low amount of that psychoactive component that gets you high, so we’re going to make that legal, while marijuana is still illegal. 

2. The mass penalty range. 

Many people are unaware that marijuana is still penalized the same based on its weight; four ounces or less is a misdemeanor. We’ll talk more about this later. Anything above that up to five pounds is a felony, but THC oil is very different. Even a thimble amount, the smallest amount, a gummy bear size amount of THC oil is a felony massive amount of difference. We’re going to dive into those details in later episodes of In Your Defense.

3. Jurisdictions in Texas are handling them very differently

In some places, marijuana is not heavily criminalized. Sometimes it’s a ticketable offense, not arrestable anymore. And then in other jurisdictions in Texas, it’s handled just as seriously as it always has been. Same with vape pens, gummy bears, things like that. So it’s confusing, we understand. 

So we’re going to talk more about that as we began to unfold THC oil-infused products and gummies and those kinds of things and marijuana over the next couple of episodes as always, if you have any questions about drugs at all, quantities amounts, marijuana charges. Reach out to me attorney Steve Toland or us here at Peek & Toland. We’re always glad to help.

Posted in Criminal Defense, Drug Crimes

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