Watch the Holiday Cheer!! DUI Enforcement is Up at the Holidays

Criminal LawIt’s the holiday season—time for Christmas and New Years parties. That usually means a few beers or a couple of cocktails. But you want to be particularly careful this time of year. Law enforcement officials are aware of the increase in parties and partying around the holidays, and typically beef up their DUI and DWI enforcement to try to ensure a higher level of public safety.

Tips for Avoiding a DUI This Holiday Season

The most obvious solution to avoid a drunk driving arrest after a Christmas or New Years party? Don’t drink and drive:

  • Find an alcohol free holiday drink—Leave the booze out of the eggnog this year or sip on some non-alcoholic champagne. Consider that it’s the company that makes the party, not the liquor. You can celebrate without drinking.
  • Volunteer to be the designated driver—You’ll be a hero with your friends and you’ll know that you won’t be riding in a vehicle with a drunk driver

But let’s say you really want to have a toddy or two—you can still do that and be safe. It may be a simple matter of pacing yourself, understanding your capacity to absorb alcohol. You can bring your own designated driver, or arrange to stay at a nearby hotel, or with a friend. Another good option—call a cab or use mass transit to get home. Here’s what won’t work, though—no amount of coffee or food will sober you up; only time can do that.

Other Ways to Minimize the Risk of a DUI

If you’ve had a few drinks and have no choice to get on the road, there are still a few tips to help minimize the risk of being pulled over:

  • Turn your cell phone off until you get home—Even when you haven’t had a few drinks, your phone is a distraction. In fact, the National Safety Council says that more than 1.5 million accidents, and 330,000 injuries every year are tied to cell phone use by drivers.
  • Practice safe driving techniques—Pay close attention to traffic signs and signals and obey the laws. There’s no rush to get home, but don’t drive way below the speed limit, either, as that will draw the attention of law enforcement officials.
  • Maintain your vehicle—Too many drunk driving arrests result from poor vehicle maintenance. The police only need reasonable cause to pull you over. If your tail light is broken or your turn signal doesn’t work, that’s a motor vehicle infraction and you can be stopped. Never put off even minor vehicle maintenance.

Contact Us

At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas criminal defense attorney, contact us online or call us at 844-402-2992. We will take your call 24 hours a day, seven days a week.

The New Second Chance in Texas: Non-Disclosure of DWI Convictions

Criminal LawIf you’ve made a single mistake in Texas, including getting behind the wheel after a little too much celebration with friends, a conviction can haunt you for years. You may find it difficult to get the job you really want, to find suitable housing, or to even get credit. Under a new law in Texas, which went into effect on September 1, 2017, many Texans will get a new second chance.

Under the new statute, House Bill 3016, a person convicted of many nonviolent misdemeanors, including DWI, can ask the court for an order of nondisclosure. The amendment to the law also changes the waiting period for nondisclosure of some offenses. Under the revised law, if the misdemeanor was punishable only by a fine, you can petition the court for an order of nondisclosure as soon as you pay the fine. If there were additional sanctions, you must wait two years from the completion of any sentence before you can seek nondisclosure.

An order of nondisclosure essentially seals a criminal record, so that it cannot be viewed by the public. Accordingly, in most contexts, the person whose record is sealed may deny the conviction without consequence. Such records always remain accessible to law enforcement officers, state and federal officials and government employers.

Under the new law, a person may seek nondisclosure of a first-offense DWI, provided the blood alcohol concentration was less than .15, and the following conditions have been met:

  • The petitioner has completed any community service requirements or incarceration
  • The petitioner has paid all fines and costs, including restitution, if ordered
  • The petitioner has not been convicted of or placed on deferred adjudication for any other non-traffic offense
  • Any required waiting period has expired

Contact Us

At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas criminal defense attorney, contact us online or call us at 844-402-2992. We will take your call 24 hours a day, seven days a week.

Texas Nondisclosure Law Changes

Criminal LawIn Texas, an order of nondisclosure from a Texas Court serves to seal all records related to an arrest or prosecution, so that the public has no access. The order of nondisclosure may still be viewed by law enforcement officers, and some state agencies, but is not accessible by potential employers and landlords.

In the current legislative session, Texas legislators have made extensive changes to the state’s nondisclosure laws. Among the most important changes in HB 3016 is the provision that provides for the sealing of a DWI conviction. Before the enactment of the new law, a DWI conviction could not be sealed in Texas. In fact, DWIs were specifically exempted from those offenses that could be subject to nondisclosure. It’s important to understand, though, that not all DWIs are eligible for nondisclosure. There are separate rules, based on whether the applicant completed DWI probation or not.

In addition, the new law is retroactive, so that any new categories subject to nondisclosure are not tied any specific date. A conviction or arrest can be sealed regardless of when it happened. The applicant must, however, meet all other requirements for nondisclosure.

The new law also makes some nondisclosures “automatic,” but still requires the applicant to submit paperwork and make the request for nondisclosure. For example, you can be immediately eligible for nondisclosure after completion of your sentence if the only punishment was a fine.

The revised statute also allows state law enforcement officials to share sealed information with federal agencies under specific guidelines.

Contact Us

At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas criminal law attorney, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.

Driving Under the Influence of Prescription Drugs on the Rise

DWIAccording to data gathered by the National Highway Traffic Safety Administration, the number of people driving under the influence of prescription drugs has increased significantly over the last decade. Authorities say it’s no surprise, pointing to studies that show a 60% increase in the use of prescription drugs during the same time period. NHTSA statistics found that the number of fatal crashes involving drivers who tested positive for drugs nearly doubled from 2005 to 2015, jumping from 12% to 21% of all fatal crashes.

Law enforcement officers across the country have reported an increase in the number of DWIs involving the use of prescription drugs, from California to New Hampshire, from Alabama to Texas, in New York and the state of Washington. National statistics are scant, as most states that have laws governing driving under the influence of drugs don’t specify the type of drug involved, and can’t provide accurate information about how many traffic stops involve drivers under the influence of prescription drugs. Anecdotal evidence from police officers, however, supports the conclusion that a greater number of drivers are getting behind the wheel of a motor vehicle while impaired by prescription pharmaceutical products.

Though many states have laws governing operating a motor vehicle while impaired by any type of drug, most states face challenges because of the difficulty of measuring drug impairment. With alcohol, there’s a commonly agreed upon standard, based on the percentage of alcohol in your blood. No such test exists for most other types of drugs. Furthermore, some drugs (such as marijuana) can be detected in the blood for weeks after use, but may not indicate the level of impairment caused by the drug, or whether the person was actually impaired while driving.

Contact Us

At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas pharmaceutical products attorney, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.

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PUBLIC INTOXICATION

Section 49.02 of the Texas Penal Code-

A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger himself or another.

EXAMPLE

Joe Public and some of his friends Ron, Doug, and Tom are out at a nightclub.  Tom is the designated driver.  The guys’ version of a designated driver is the person who has had the least to drink.  When the club closes, the guys go to the car to drive home.  Tom had too much to drink and is weaving down the road.  Tom is stopped by the police and arrested for Driving While Intoxicated.  All the passengers in the car are checked for intoxication and all of them are too drunk to drive.  The other three, Joe, Doug, and Ron, are all arrested for Public Intoxication.

This may seem unfair to the three people who were not driving, but since no one else can drive the car, the others would be a danger to themselves and others.  It is not the police officer’s duty to drive the guys to a safe place.  This is a Class C misdemeanor for the passengers.   The guys could be fined up to $500 and will probably spend the night in jail.

CONSUMPTION OF AN ALCOHOLIC BEVERAGE IN A MOTOR VEHICLE Section 49.03 of the Texas Penal Code-

A person commits an offense if the person consumes an alcoholic beverage while operating a motor vehicle in a public place and is observed doing so by a peace officer.

EXAMPLE

Joe just got off work at a local restaurant at 1:30 a.m.  He takes a beer with him in the car to drink on the way home.  Joe is sitting at a stoplight and is taking the first drink of his beer when a police officer pulls up next to him just in time to see Joe take a drink.  The police lights go on and Joe is given a Class C citation for Consumption of an Alcoholic Beverage in a Motor Vehicle.  It does not matter that Joe was not intoxicated.  Joe was operating his car and drinking an alcoholic beverage. The fine is up to $500.

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The Best Ways to Avoid an Arrest for Drunk Driving

The most obvious way to avoid a DWI arrest is to refrain from driving when you have consumed any alcohol. Depending on a number of factors, including how much you have eaten, how large you are and when you last ate, even one drink may put you at or over the legal limit. The best advice is to wait a minimum of two to four hours after the consumption of any alcohol before getting behind the wheel of a car.

Other steps you can take that will minimize your risk of arrest include:

  • making certain your car’s registration is current and that you have the appropriate tag on your car. Unfortunately, many people who are charged with DWI are pulled over because of an expired or out-of-date registration tag. Simply having the tag in the car with you won’t help. Keep your registration current and immediately update your license plate.
  • obeying all traffic laws. Most people arrested for DWI are pulled over for violation of another traffic law, not because they appear to be driving while intoxicated. Common offenses include speeding, making illegal turns or lane changes, or failing to use due caution. You can even be pulled over for driving too slowly. Don’t increase your risk if you have had a drink or two. Obey the traffic laws.
  • don’t volunteer information to the police officer. If you are old enough to drive, you must know that you have the right to remain silent. Don’t tell the officer that you have been drinking, and don’t worry that your refusal to answer a direct question may imply guilt.
  • make certain your car is street-legal. Any defective equipment, such as a broken light or faulty turn signal, can be the basis for a traffic stop. Also, tinted windows, glass packs and other customized features that may or may not be legal can be the basis for being pulled over.
  • don’t take field sobriety or coordination tests. You are not required to take field sobriety tests. You cannot be arrested for refusing to submit to the test.

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Taking A Breath or Blood Specimen

When it comes to driving while intoxicated, a law enforcement officer can take a child into custody under the same laws and circumstances as an adult. The same elements that must be proved to convict an adult in adult court would be required to adjudicate a juvenile in juvenile court. But for a law enforcement officer, how he or she obtains the evidence may be quite different than it is for an adult. In the usual child custody situation, the Family Code establishes strict restrictions on law enforcement interactions with children. It delineates exactly what an officer can do with a child once he or she is in custody, where he or she can be taken, the amount of time he or she can spend with an officer, as well as who must be notified and when. But the Code also contains certain special provisions just for children involved in operating a motor vehicle under the influence. These special provisions don’t do away with the strict Family Code requirements of juvenile arrest; they only postpone them.

The term “child” or “children” apply to persons between the ages of 10 and 17. The Texas Alcoholic Beverage Code Section 106.041 provides that a minor commits an offense if the minor operates a motor vehicle in a public place, or a watercraft, while having any detectable amount of alcohol in the minor’s system. This is not a DWI or an OWl-related offense. This offense is committed by a minor who operates a motor vehicle in a public place while having “any detectable amount of alcohol” in his or her system. Thus, all the elements are identical to a DWI offense except that any detectable amount of alcohol constitutes an offense rather than needing the alcohol consumption to rise to the level of intoxication.

The Texas Transportation Code Section 724.012(a) authorizes the taking of a person’s breath or blood if they are arrested for operating a motor vehicle while intoxicated or if a minor operates a motor vehicle with any detectable amount of alcohol in their system.

AUTHORIZATION FOR A CHILD’S BREATH OR BLOOD SPECIMEN

The Texas Family Code Section 52.02(c) provides that: “A person who takes a child into custody and who has reasonable grounds to believe that the child has been operating a motor vehicle in a public place while having any detectable amount of alcohol in their system may, before complying with Subsection (a):
(1) take the child to a place to obtain a specimen of the child’s breath or blood as
provided by Chapter 724, Transportation Code; and
(2) perform intoxilyzer processing and videotaping of the child in an adult processing office of a law enforcement agency.”

This provision provides directions to an officer as to where he or she can take a child when there has been a determination that the child has been operating a motor vehicle in a public place with “any detectable amount of alcohol” in his or her system (which would also include an OWl). This provision authorizes a child to be taken to a place to obtain a specimen of the child’s breath or blood as provided by Chapter 724, Transportation Code, and that the child may be videotaped in an adult processing office as opposed to a juvenile processing office. This provision does not dispense with the strict requirements of Section 52.02(a). To take a statement from a child, the officer would still need to comply with Texas Family Code Sections 52.02 and 51 .095. Section 52.02(c) simply allows a procedure for the collection of a breath or blood specimen prior to compliance with Section 52.02(a).

BREATH SPECIMEN: CHILD CAN SUBMIT OR REFUSE WITHOUT ATTORNEY

The Transportation Code Section 724.013 states: “Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”

The Texas Family Code addresses a child’s consent to a specimen in Section
52.02(d) which states: “(d) Notwithstanding Section 51.09(a), a child taken into custody as provided by Subsection (c) may submit to the taking of a breath specimen or refuse to submit to the taking of a breath specimen without the concurrence of an attorney, but only if the request made of the child to give the specimen and the child’s response to that request is videotaped. A videotape made under this subsection must be maintained until the disposition of any proceeding against the child relating to the arrest is final and be made available to an attorney representing the child during that period.”

The first phase of this provision, notwithstanding Section 51 .09(a), creates a special exception to the strict lawyer requirement as set out in Section 51 .09(a). As a result, the provision allows a child to submit to the taking of a breath specimen or refuse the taking of a breath specimen without an attorney if the request and response is videotaped. While the provision clearly makes an exception to the attorney requirement for a breath specimen, no such exception in the statute is made for a blood specimen.

BLOOD SPECIMEN: CHILD CAN SUBMIT OR REFUSE WITH ATTORNEY ONLY
Clearly, without a similar provision creating an exception to the strict requirement of Section 51 .09(a), the requirements of Section 51 .09(a) must be met. This would mean that before a child could voluntarily submit to a blood specimen, the child and his or her attorney would have to agree to give up the child’s rights.

We can then conclude that a child can submit or refuse to submit to the taking of breath test without an attorney [under the requirements of Texas Family Code Section 52.02(d)] and that a child can submit to a blood specimen only with the acquiescence of an attorney [under the requirements of Section 51.09 (a)].

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Suing drunk drivers…and the bars that served them

By Randy Turner

Last year more than 10,000 Americans were killed by drunk drivers. Thousands more suffered catastrophic injuries. Of course, the victim or the victim’s family has a legal claim against the drunk driver, but what happens if the drunk driver doesn’t have liability insurance or has insurance but the policy limits aren’t enough to adequately compensate the victim? (Texas law only requires drivers to carry minimum limits of $30,000 per person). If the drunk driver happened to be on the job at the time of the accident then the victim may also have a claim against the employer. The victim should also look to his or her own automobile insurance policy for “uninsured/underinsured motorist” coverage. This insurance pays when a negligent driver either didn’t have any insurance or didn’t have enough. An experienced personal injury attorney will also investigate the possibility of bringing an action against the bar or establishment that served or sold alcohol to the drunk driver.

Texas Dram Shop Law

Dram shop laws are laws that allow a person who is injured by a drunk driver to bring a claim against the bar, restaurant or person that sold alcohol to the drunk driver before he got on the road. In 1987 the first Texas Dram Shop Act was signed into law as Section 2.02 of the Texas Alcoholic Beverage Code. It provides that a person or business is liable for providing, selling or serving an alcoholic beverage to someone if it was “apparent to the provider” that the person was “obviously intoxicated to the extent that he presented a clear danger to himself and others” and his intoxication was a proximate cause of the damages suffered.

Proportionate responsibility

In 2007 the Texas Supreme Court ruled that a business that sells alcohol to a drunk driver is only liable for damages based on its proportion of responsibility. In F.F.P. Operating Partners v. Duenez a convenience store sold a 12-pack of beer to an obviously intoxicated man who then drove his car in the wrong lane and collided head-on with the Duenez family’s car. The family sued the drunk driver, the store and the store clerk. The Supreme Court held that the store’s liability is determined by the percentage of responsibility that the jury assigns to the store. For example, if the jury finds that the drunk driver was 70 percent responsible for the accident and the store was 30 percent responsible, then the store is only liable for 30 percent of the damages caused by the wreck. However, if the jury finds that the store is 51 percent responsible or more, then the store is liable for all of the damages.

Conclusion

Drunk drivers cause thousands of tragic injuries and deaths each year and often do not have enough insurance to adequately compensate their victims. Sometimes an irresponsible bar, restaurant or store provided the alcohol that caused the driver to become intoxicated. The Texas dram shop law gives an experienced personal injury attorney the ability to hold alcohol providers legally accountable for their negligence and make them pay for the damages caused by drunk drivers.

What NOT to Do When Stopped by the Police: Advice from a Criminal Defense Attorney and Former Police Officer

This article is primarily intended for younger males. Like it or not, and regardless of whether it’s fair, these are the drivers that primarily catch the attention of police officers. Your chance of being stopped is already elevated, so please don’t make the job of the officer unreasonably simple, or make the job of your defense attorney more difficult than necessary.

  1. Check the equipment on your vehicle before hitting the road, especially if you will be driving late at night. Generally, there are fewer cars on the road per officer at night, so you are begging to be stopped if you also have a headlight, taillight, license plate light, etc., that is not in compliance with the law. This just makes it too easy for the officer to stop you. He sees it as an easy opportunity to look in your car to see if anything more interesting might be going on.
  2. Don’t immediately begin complaining to the officer that you were only stopped because you are white/black/Asian/Hispanic/etc. This will only serve to ensure the officer cites you for all violations he observes to cover himself should you file a complaint. It is also just a bad idea to start the conversation by challenging an officer’s authority. The bottom line is that the officer has a tremendous amount of discretion and you don’t appear to be worthy of leniency when you start off by challenging him.
  3. Don’t ever give the officer permission to search your person or vehicle. If you say “yes,” you are putting your head on the chopping block and hoping it doesn’t get cut off. You are always better off saying “no” in this situation. The officer may still conduct a search, but if he finds anything he will have to document a legally sufficient reason for searching without your consent. This is the first thing your defense attorney will look at in hopes of arguing the search was illegal.

If all of my clients lived by these simple rules it would make the job of their defense attorney much easier.