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Frequently Asked Questions

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Criminal Law Info

Frequently Asked Questions – Criminal Defense

I AM BEING INVESTIGATED BY THE POLICE BUT HAVE NOT BEEN OFFICIALLY CHARGED, SHOULD I TALK TO THE POLICE?

You should consult with an experienced criminal defense attorney immediately!

An attorney will be able to give you advice about whether you should make any statements to investigators or allow a search of your property. You do not have to give a statement to the police. Any statement can and will be used against you. You do not have to consent to a search — even of your car. Politely refuse. An attorney can also help you make arrangements — if you are going to be arrested — to turn yourself in and avoid the embarrassment of being arrested at work or home. There are many other ways involving an attorney at the beginning of an investigation can benefit you, including, but not limited to, preventing the charges from getting filed by presenting evidence to the police or district attorney on your behalf.

HOW DOES BAIL/BOND WORK?

The two most common ways to post bond if the bail amount has already been set is to:

1) Hire a bondsman who will post the bond for you in exchange for a fee. This fee can vary but is usually between 10-20% of the total bond amount set. You will not receive this money back — even if the charges against you are ultimately dropped. The bondsman will require you to “check in” weekly and abide certain terms, or

2) Post the full bond amount yourself (or a family member). Assuming that you show up for your court appearances, etc.. You should be able to get that money back once your case is disposed and/or apply the money to any court costs you may be ordered to pay.

WHAT IS THE DIFFERENCE BETWEEN “STRAIGHT PROBATION” AND “DEFERRED ADJUDICATION PROBATION”?

Deferred Adjudication is a type of probation where after you successfully complete the community supervision (probation) period you are discharged without a final conviction “on your record.” Even though you do not have a conviction after successful completion of deferred adjudication, there is still a “record” of your probation. This is important to know when filling out job applications or student loan applications where the question may be “have you ever been convicted.” It is important to remember that anyone with access to the internet can see that you were arrested and placed on probation, including potential employers. If you previously completed a deferred adjudication probation you may be eligible for a “nondisclosure order” under a new law that went into effect September 2003. You can find out more about this below. If you violate a deferred adjudication probation you can be sentenced to any jail/prison term within the range of punishment available for the particular offense.

Straight probation is a type of probation where you are sentenced to a jail/prison time but only do that time if you violate the terms of probation. A straight probation is a conviction nonetheless — even after successful completion of the probationary term.

Not all offenses are eligible for “deferred adjudication” and not all offenses are eligible for “straight probation”. You should talk to an experienced attorney to determine what options are available in your case.

IS THERE ANYTHING I CAN DO IF I LOST AT TRIAL OR AM NOT SATISFIED WITH THE OUTCOME OF MY CASE?

You may be able to appeal your case to the Texas Court of Appeals following a jury trial, or under certain, very limited conditions, if you entered a plea. There is a very small window of time to pursue a direct appeal, however, and usually you must file the Notice of Appeal within thirty days of your conviction.

If your appeal is lost at the Court of Appeals level you can still petition the Texas Court of Criminal Appeals to consider your case. Ultimately, you can even ask the United States Supreme Court to consider your appeal. However, The Texas Court of Criminal Appeals and the United States Supreme Court hear very few cases and the likelihood of your appeal being “picked” is low. The Courts try to limit the cases they hear to those that raise important issues that will likely have a great effect on many legal issues or constitutional rights.

After losing an appeal, there are certain post-conviction remedies that may be available if you were denied a constitutional right or if you believe your lawyer was ineffective. These remedies are available in the state and federal courts, however, there are, again, strict deadlines and rules regarding the filing of such writs.

WHAT DO I DO IF I GET STOPPED FOR DWI?

· Do not do any tests unless you are absolutely sure that you are not under the influence of alcohol. You may politely refuse.

· A police officer will ask you to perform certain tests if he or she believes you have been drinking. If you have not been drinking you may wish to perform these tests, however, some people have trouble performing these tests even when they have had nothing to drink.

· There are a variety of factors that can impact the validity of the “tests” such as weight, medical conditions, age, etc.. Some police officers are well trained in the administration of these tests but some do not have the training and experience to properly administer them. You will not know if the officer who has stopped knows how to correctly administer the tests.

· Ask to be allowed to consult with an attorney, while you do not have a right to consult with an attorney, you cannot be forced take any field sobriety tests.

· If you are asked to give a blood or breath specimen you may politely refused and we usually recommend that you do refuse. The machine that the police use to administer this test is not infallible.

· Refuse to answer any questions or make any statement if you have been arrested. These statements will be used against you in court.

CAN I GET MY CRIMINAL RECORD “ERASED” OR “SEALED?

There are some instances where you may qualify for an “expunction” of certain criminal history. You are most likely to be eligible if you were found not guilty after a trial or if the case against you was ultimately dismissed. An expunction can have the effect of “erasing” your record but there are many factors that must be examined to determine if you are eligible for an expunction. Recent changes in the law have impacted the expunction process and it is important that the attorney you consult with is aware of these recent developments.

If you cannot get an expunction you may still qualify for an “Order of NonDisclosure” if certain criteria are met and after a successful completion of a deferred adjudication probation. Again, this can depend on the type of offense for which you were placed on probation and it is important to talk to a knowledgeable attorney to determine if you meet the required criteria.

I HAVE BEEN ARRESTED BUT THE POLICE DID NOT READ ME MY MIRANDA RIGHTS.

Many people believe that because they were not “read their rights” that their case should be dismissed. This is not true. It just means that some “post-arrest” statements may not be admissible in Court. We see on television or in the movies that the whole case turns on this issue and occasionally it does, but it does not mean the case automatically goes away.

I HAVE BEEN ARRESTED AND THE OFFENSE I WAS ARRESTED FOR HAS BEEN CHANGED TO A HIGHER/LOWER CHARGE.

This happens quite often. Sometimes the police test the weight of a drug at the scene and after it comes back from the lab, it tests as a different weight. (Doesn’t include the container the drug was in, usually). Sometimes the arrested person has prior convictions that enhance the offense to a higher level offense. Sometimes the police don’t charge the arrestee with the proper charge.

WHY DOES THE PROCESS TAKE SO LONG?

The police have to prepare and deliver the case to the District Attorney. The District Attorney has to review each case from every police agency in the County, then decide if they will formally file the case or present the case to the Grand Jury. If the police or District Attorney’s Office is waiting on a lab report for a drug test or a blood test, the process is radically slowed.

WHAT YOU SHOULD KNOW ABOUT THE CRIMINAL TRIAL PROCESS.

Denton Criminal Defense Attorney Joseph Boswell provide vigorous representation for their clients through every stage of the criminal trial process. It is a critical process that demands diligent legal representation from the initial criminal investigation through any final appeal.