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DWI

Expunctions: What is it? Who Qualifies? and How Can It Help an Immigration Case?

By Peek & Toland on July 15, 2020

Welcome to Immigration Wednesdays. Attorney Jeff Peek briefly explains expunctions, who’s eligible, the process, and the benefits. 

What is it?

It’s a process in the state of Texas whereby one charged with a criminal case, whether it be DWI, misdemeanor, or felony, had that case either dismissed or found not guilty, can then erase it in all records. Records include physical state, paper files, computer, digital, and online so that it doesn’t appear anywhere. 

Process & Eligibility  

First of all, this is in the state of Texas. If arrested in another state, check with lawyers in that state because each state has a very different way of handling expunctions. In Texas, you must have either had the case dismissed or be found, not guilty at trial.

Dismissal 

There are different types of dismissals. In lawyer language, it’s called a straight dismissal, meaning there was no reduction of charges. There was no lesser punishment involved, and the charges are dropped. For example, if you were charged with DWI and they agreed to dismiss the DWI, but then you had to plead to reckless driving or obstruction of a passageway, you would not be able to expunge the DWI because you ended up taking a plea deal and punishment on a lesser case.

Sometimes, you find cases where somebody’s charged with a misdemeanor or felony, and they drop it down to a different level, and it’s dismissed at that lower level. For instance, you have a felony dropped down to a misdemeanor. Still, then you’ve got a deferred prosecution on the misdemeanor, or they dropped it down to a class C ticket, and you got a deferred disposition on the class you ticket that also ended up in dismissal. In some of those cases, you could still be eligible to expunge it. 

Found Not Guilty at Trial

If you go to trial, whether in front of a jury or a judge and you’re found not guilty, you’re also eligible to having expunction and even better. You don’t have to pay the filing fees for that.

What if you have completed probation, are you eligible for expungement? No. What if you finished a jail sentence and it’s been more than ten years, are you eligible for expungement? No. It’s very limited to those two classes. And again, if you have a diversification, there’s another process. 

Benefits 

Secondly, why would you want to do it? There’s a lot of reasons. Here are some examples:

  1. Employers have access to criminal records. They may see that you were arrested, and they may not like the fact that you have a record. Even if you got off on the case. 
  2.  You don’t want your partner or their family to see your record
  3. You want to apply for law enforcement
  4. You want to go to advance your career 

Benefits for Immigrants 

There are also two crucial reasons from an immigration side. For example, there are programs now, in central Texas and other many other counties, where you can enter what is called a Deferred Prosecution Agreement, or sometimes it’s called a Pretrial Diversion Agreement or Drug Courts. These various programs allow you to dismiss the case once you have completed all of their requirements. Sometimes they dismiss it on the front end, sometimes in the back end, but it’s a valid dismissal that your eligible do expunge. For immigration law, USCIS has begun to question whether that dismissal is an actual dismissal. And they’ve said, “No, that’s not a true dismissal, you admitted to doing the crime?” When you sign that Deferred Prosecution, you confessed statements. When you participated in that Pretrial Diversion Program or that Drug Court, you went in front of a judge and admitted that you did those activities. You took responsibility, immigration saying that’s not a dismissal. USCIS is going to count that as a conviction. Even if your paperwork shows “dismissal,” USCIS will argue that those programs require a confession or knowledge of responsibility. Therefore, you are guilty of those charges.

So, it’s vital to dismiss charges that they are entirely removed from your record to avoid running into this issue with the USCIS. 

If you are an immigrant or somebody with permanent residency, and you are in that situation, definitely talk to a lawyer who knows both criminal offense and immigration law.

If you have any questions about expunctions and the process, please call Peek & Toland Law Firm at 512-474-4445, we’d be happy to help. 

Posted in Criminal Defense, DWI, Immigration

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Texas Implied Consent Law and You

By Peek & Toland on May 19, 2020

The implied consent law in Texas, found at Tex. Trans. Code § 724.035, states that if a police officer has probable cause to believe that you have been driving while intoxicated, you automatically consent to chemical testing to measure your blood alcohol content (BAC). Essentially, by obtaining a driver’s license and driving on Texas roads, you give your consent to blood, breath, or urine testing if law enforcement officials accuse you of committing DWI.

As a result of the implied consent law, if you are refuse to voluntarily submit to breath, blood, or urine testing to measure your BAC in a case of suspected DWI, you can face additional administrative penalties. If you are convicted of DWI, you will encounter these administrative penalties in addition to whatever penalties you receive for the DWI. Even if you are not convicted of the DWI, you still will face these penalties.

Texas Implied Consent Law and You

If you refuse to undergo BAC testing voluntarily, the officer can and will get a warrant compelling you to submit to the testing. Furthermore, you are likely to face the following penalties:

  • 180 days license suspension for a first offense
  • Two-year license suspension for a second offense within ten years

If your license is suspended due to an implied consent violation, however, you may qualify for an occupational license. This type of restricted license allows you to drive back and forth to work legally and to perform essential household duties, despite your license suspension.

You also should know that refusing to take field sobriety tests is different than refusing to submit to chemical tests to measure BAC. Refusing to take field sobriety tests when an officer requests you to do so will not result in the same automatic driver’s license suspension as refusing to take a chemical test. In other words, the state’s implied consent law does not apply to field sobriety testing.

The criminal defense lawyers of Peek & Toland have handled the cases of countless individuals who are facing criminal charges in the State of Texas. We are here to protect your rights and advocate on your behalf. As a result, we will strive to get the best outcome possible in your case. Call our office today at (512) 474-4445 to set up an appointment with our criminal defense attorneys.

Posted in DWI

Financial Repercussions of a DWI

By Peek & Toland on May 10, 2020

The economic repercussions of a DWI, even for a first offense, are higher than you might anticipate. In addition to the direct costs imposed by the court in a criminal case, individuals also may face administrative expenses from the Texas Department of Public Safety (DPS) and other collateral costs.

A DWI conviction will result in the court ordering the defendant to pay a fine, which just became more costly as of September 1, 2019. Although the Texas legislature eliminated driver surcharges, they accordingly increased the fines for DWI offenses. For a first DWI offense, the fine is now $3,000. However, if your BAC measures .16 percent or more at the time of arrest, the fine increases to $6,000. A second DWI within three years of the first results in a $4,500 fine. Furthermore, third DWI, intoxication assault, and intoxication manslaughter convictions can result in as much as $10,000 in fines.

Financial Repercussions of a DWI

Furthermore, Texas law now requires that individuals who are charged with a subsequent DWI, DWI with child, DWI intoxication assault, or DWI intoxication manslaughter installed an ignition interlock device (IID) on their vehicles as a condition of their bond. The installation fee and monthly monitoring fees for IIDs are not cheap and contribute to the financial burdens of a DWI.

Individuals who are convicted of DWI also may have to pay restitution for any property damage that they caused as a result of the incident, probation fees, license reinstatement fees, and more.

DWIs also result in other indirect costs. For instance, motor vehicle insurance rates also will increase following a DWI conviction. On average, these premiums may increase by about 60% or $75 per month. Additionally, individuals may need to miss work so that they can appear in court, meet with lawyers, attend counseling, and serve jail time. In some situations, individuals may even lose their jobs, which can create a substantial financial burden.

If you or a family member is facing DWI charges or any other criminal charges, we may be able to help. As experienced Texas criminal defense attorneys, we have the knowledge needed to help you navigate through often-complex criminal proceedings. Call us today at (512) 474-4445 and schedule an appointment with one of our criminal defense lawyers and learn how we can assist you.

Posted in DWI

DWI Offender Education Programs in Texas

By Peek & Toland on May 8, 2020

Texas law offers different DWI offender education programs for use by judges in sentencing individuals in DWI and related criminal cases. All providers that offer these courses must receive certification by the state. This step helps ensure that the programs are standardized and approved by the state for use in the criminal justice system as needed.

For instance, the state has a standardized 12-hour DWI education program that teaches individuals about alcohol and drugs, as well as how their use impacts driving skills. This is the education course that the courts usually require for first-time DWI offenders.

DWI Offender Education Programs in Texas

For individuals with multiple DWI convictions, the state offers a lengthier 32-hour DWI intervention program. The purpose of this program is to address alcohol and drug-related problems, intervene in those problems, and encourage individuals to seek treatment.

The state also has standardized a six-hour program for minors who have been caught in possession of alcohol. This course is primarily educational and geared toward young people. Minors cannot drive with any detectable level of alcohol in their systems. As a result, courts typically require minors convicted of DWI to enroll in and complete an alcohol education course.

State law also requires that adults convicted of some alcohol-related offenses complete an alcohol education program within 180 days if the judge places them on probation or community supervision. However, the judge may determine after considering various factors that the individuals need not complete the program on a showing of good cause. Individuals also may not need to complete an educational program if they complete a residential substance abuse treatment program instead.

Individuals can face severe penalties if they do not complete a mandatory alcohol education program as ordered by the judge. For example, if a judge has ordered individuals to complete an education program, and they fail to do so, the Department of Public Safety will revoke their licenses or prohibit them from obtaining a license. Individuals also can face revocation of their community supervision if they fail to complete the educational program as a condition of their community supervision sentence.

The Peek & Toland criminal defense lawyers are here to represent your interests and advise you of the best course of action in your criminal proceedings. Set up an appointment to talk to us today and discover how we can assist you with your criminal case.

Posted in DWI

How Does Your BAC Impact a DWI Case?

By Peek & Toland on May 4, 2020

Blood alcohol content or concentration (BAC) is an element of many DWI cases. Texas law defines BAC as the number of grams of alcohol per 210 liters of breath, 100 milliliters of blood, or 67 milliliters of urine. BAC measurements can vary among people who consume the same amount of alcohol based on the timeframe in which they drank the alcohol, the type of alcohol they drank, their weight, and the food that they consumed.

Under Texas law, you are subject to arrest and criminal charges for the offense of driving while intoxicated (DWI) if you have a BAC of .08% or more. However, you also can face these charges if you are impaired by alcohol or drugs, regardless of BAC. Regardless, BAC measurements remain a significant piece of evidence in many DWI cases.

Your BAC also can elevate the charges and penalties that you receive for DWI. If your BAC measures .15% or more at the time of your arrest, you can face second-degree misdemeanor charges for DWI in Texas rather than the typical third-degree misdemeanor charges. These charges carry more severe penalties. Additionally, the fine for a “High BAC” recently increased to $6,000, which can pose a significant financial burden for many people.

BAC levels also make a difference in DWI cases involving drivers who hold commercial driver’s licenses or CDLs. While state law makes it illegal for most individuals to drive with a BAC of .08% or more, people who hold CDLs are held to a higher standard. For these individuals, driving with a BAC of .04% or more can result in DWI charges and the suspension of their CDLs for at least one year.

Minors, or individuals who are under the age of 21, also are not subject to the BAC limits that apply to most adults. If minors have any detectable amount of alcohol in their systems while driving, or a BAC that measures more than 0.00%, they can face DUI charges.

When you are facing any criminal charges in the state of Texas, you need an experienced criminal defense attorney to represent your interests. Contact Peek & Toland at (512) 474-4445 today and set up an appointment to speak with our legal team.

Posted in DWI

Can I Be Deported for a DWI Conviction?

By Peek & Toland on April 8, 2020

Immigrants who are not U.S. citizens, whether they are present in the U.S. with no legal immigration status or hold legal permanent residence or green cards, can face deportation for various reasons. A conviction for some crimes, including DWI, could trigger removal proceedings.

Any convictions for drug crimes, offenses related to firearms, aggravated felonies, or crimes of “moral turpitude” could subject you to deportation. Although a single DWI conviction with no factors that would increase the sentencing would not necessarily have an impact on your immigration status, there are situations in which a DWI conviction might cause deportation proceedings.

Can I Be Deported for a DWI Conviction?

For instance, some aggravating circumstances might result in a felony charge. If you have a child under the age of 15 in the vehicle at the time of the offense, you can face felony DWI charges. Likewise, if you cause an accident resulting in significant bodily injury or death in the course of committing a DWI, you can face felony charges. These charges might qualify as “aggravated felonies” that could trigger deportation.

Likewise, if you have multiple DWI convictions over time, the charges and penalties may increase with each successive conviction. This situation also could result in an “aggravated felony” conviction that might result in removal from the U.S. if you are not a citizen.

If you already hold a green card and want to apply for citizenship, you also may encounter difficulties if you have a DWI conviction. A successful application for naturalization requires that you show proof of “good moral character” for the last five years. Individuals who have been convicted of a DWI within the previous five years may be unable to obtain citizenship as a result. If you or a family member is facing weapons charges or any other criminal charges, we may be able to help.

As experienced Texas criminal defense attorneys, we have the knowledge needed to help you navigate through often-complex criminal proceedings. Call us today at (512) 474-4445 and schedule an appointment with one of our criminal defense lawyers and learn how we can assist you.

Posted in DWI

Administrative License Revocation Hearings and You

By Peek & Toland on February 18, 2020

When you are arrested for driving or boating while intoxicated (DWI or BWI), two separate proceedings can affect the validity of your driver’s license. You can receive a license suspension or revocation ordered by the court in your criminal proceedings. However, the Texas Department of Public Safety (DPS) also has an Administrative License Revocation (ALR) program that can impact your license in these situations, as well.

The ALR process begins when you are arrested for DWI or BWI and you:

  • Refuse or fail to take a breath or blood test to measure your blood alcohol concentration (BAC)
  • Take a breath or blood test showing that your BAC is .08% or more when driving a non-commercial motor vehicle
  • Take a breath or blood test showing that your BAC is .04% or more when operating a commercial motor vehicle

Any of these events will result in the administrative suspension or revocation of your license. The ALR process is entirely unrelated to and unaffected by any license suspensions or revocations that occur as a result of your criminal proceedings.

Administrative License Revocation Hearings and You

When you refuse a blood or breath test during a DWI arrest, the officer automatically will take your license and issue you a temporary license and notice of suspension. At that point, you only have 15 days to request an administrative hearing before DPS to contest the license suspension. If you fail to request a hearing within the required 15-day period, your suspension will go into effect on the 40th day after you received the suspension notice, which usually is 40 days after the date of your arrest.

The process is similar if you submit to a blood test, and the results show a BAC over the legal limit applicable to your case. The only difference is that you don’t receive a notice of suspension immediately from the police officer. Instead, once the requesting law enforcement agency receives the results, they will mail you a notice of suspension and a temporary license. You then have 15 days from the date that you are served with the suspension notice to request an administrative hearing.

It can take up to 120 days for an administrative hearing to occur. You will go before an Administrative Law Judge (ALJ), who will hear evidence from both parties and make a final determination about the suspension or revocation of your license. If DPS proves its case, your license will be suspended, but if DPS is unable to prove its case, your license will not be suspended. You will receive a written decision from the ALJ that you can further appeal if you choose.

Peek & Toland dedicates a large part of its practice to assisting individuals in resolving their criminal charges. We know that criminal proceedings can be intimidating and overwhelming for those who are facing potential penalties for criminal charges. We will work with you to achieve the most favorable outcome possible in your situation. Call our office today and set up a consultation with our skilled criminal defense attorneys today.

Posted in DWI

Drunk Driving Penalties for Individuals Under the Age of 21

By Peek & Toland on January 27, 2020

If you are a minor or under the age of 21, it is illegal for you to drive with any detectable amount of alcohol in your system. As a result, consuming any amount of beer, wine, or liquor could result in criminal charges of Driving Under the Influence of Alcohol by a Minor (DUIA by a Minor). The consequences of this offense vary according to your history of previous crimes and your age. For a first offense, you could face the following penalties for a Class C misdemeanor conviction:

  • A fine of up to $500
  • A 60-day driver license suspension
  • Completion of 20 to 40 hours of community service
  • Mandatory attendance at an alcohol awareness class

The penalties can increase, even for a first-time offense, if you are over the age of 17 and are caught driving with a blood alcohol concentration (BAC) of .08 percent or higher. In this situation, you can face a fine of up to $2,000, three to 180 days in jail, and a license suspension ranging from 90 days to one year. In most cases, individuals generally do not face jail time for a first offense, but older minors often will be required to serve some jail time for a second or subsequent offense.

Drunk Driving Penalties for Individuals Under the Age of 21

Not surprisingly, second and subsequent drinking and driving offenses for minors carry the potential for more significant penalties than those that might result from a first offense. For instance, the license suspension for a second offense for a minor is typically 120 days and increases to 180 days for third and subsequent offenses.

Minors also are subject to the state implied consent law, which subjects individuals to license suspensions when they refuse to take a chemical test for their BAC during a DWI arrest. Minors who refuse chemical testing can be subject to a 180-day license suspension for a first offense and a one-year suspension for a second offense. An experienced Texas criminal defense attorney can help you build a strong defense against any criminal charges. We are here to evaluate the facts surrounding your case and explore your options. We then can help you make the decisions that are mostly like to be beneficial to you, based on your situation. Contact Peek & Toland at (512) 474-4445 today and see how we can help.

Posted in DWI

Can DWI Get Me Deported?

By Peek & Toland on November 11, 2019

Depending on your immigration status, you could face deportation from the U.S. if you are convicted or even arrested of DWI in Texas. Various circumstances and DWI-related offenses may put you at risk of deportation.

If you have no legal immigration status, you are likely to face deportation for a DWI arrest, even if you are not convicted. Immigration laws do not require a criminal conviction for you to be deported. The mere fact that you have no legal immigration status is enough to deport you alone.

Can DWI Get Me Deported?

If you hold a green card or are a legal permanent resident, a misdemeanor DWI conviction is not likely to jeopardize your status as a green cardholder. However, if you receive a felony DWI conviction, you may be subject to deportation. U.S. Citizenship and Immigration Services (USCIS) considers some felony DWI-related offenses to be crimes of moral turpitude, which can make you eligible for removal. For instance, you can face a felony DWI conviction if you have previous DWI convictions on your record or your blood alcohol content (BAC) was .015 percent or more. You also may receive felony DWI charges if you commit DWI while you have a passenger under age 15 in your car or cause an accident while intoxicated that results in injuries or death to others.

Furthermore, in today’s political climate, green card holders are facing arrest and deportation for DWIs and other criminal offenses that may be years old. They also may be subject to deportation now for offenses that would not have affected their immigration status many years ago. Immigration and Customs Enforcement (ICE) agents have publicly announced their intent to remove even legal immigrants with any criminal convictions. As a result, even if your DWI conviction is ten years old, you still might face deportation under the current administration.

At Peek & Toland, we care about helping you through your criminal proceedings. We will focus our efforts on advocating on your behalf and representing your interests throughout your case. Our knowledgeable criminal defense lawyers know the best strategies for defending you and working toward your desired objective. Allow us to handle your criminal case by sitting down with us today and discussing your situation.

Posted in Criminal Defense, DWI

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What is a SCRAM Device?

By Jeanine Stone on November 10, 2019

A SCRAM device or a Secure Continuous Remote Alcohol Monitor is an electronic device that allows courts to monitor your alcohol intake continually without requiring you to undergo testing. The SCRAM devices also contain a sensor that can detect any attempts you make to tamper with the device and transmits the information to law enforcement authorities.

If you are ordered to wear a SCRAM device, the provider will fit you with a tamperproof ankle bracelet consisting of two boxes. One box measures your blood alcohol content (BAC), while the other box stores the data and transmits it to the law enforcement personnel who must monitor your alcohol intake. BAC measurements occur every hour when you are wearing a SCRAM device. If the device detects any alcohol in your system, it then will measure your BAC every 30 minutes.

SCRAM devices are susceptible to errors, as they measure BAC through the alcohol content of perspiration emitted through the skin. As a result, SCRAM measurements may be less reliable than blood tests to measure BAC.

What is a SCRAM Device?

Courts can order you to wear a SCRAM device if you are released from jail on bond while awaiting criminal charges. SCRAM devices also may be a condition of your probation following a criminal conviction. In some cases, courts order individuals to wear SCRAM devices instead of serving time in jail. Courts typically use SCRAM devices when you are charged with or have been convicted of an alcohol-related criminal offense.

Wearing a SCRAM device can be costly when you must wear it for a lengthy period. You typically must pay a refundable deposit, a one-time fitting fee, and a weekly maintenance fee. In most cases, you must pay all these fees up front.

Peek & Toland dedicates a large part of its practice to assisting individuals in resolving their criminal charges. We know that criminal proceedings can be intimidating and overwhelming for those who are facing potential penalties for criminal charges. We will work with you to achieve the most favorable outcome possible in your situation. Call our office today and set up a consultation with our skilled criminal defense attorneys today.

Posted in Criminal Defense, DWI

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