Frequently Asked Questions About Texas Law
Some law enforcement agencies have websites which list active arrest warrants. You can check for warrants from the Travis County Sheriff’s office, click here. If you wish to check for warrants with the Austin Police Department, click here. If you do see a warrant for your arrest, an attorney can often help you arrange a “self surrender” or a “walk through”, which is a process in which you make bonding arrangements in advance and can be processed in and out of jail. This is usually much quicker and more efficient than the process involved in posting bond and arranging a jail release after you have been arrested. Texas law does not require law enforcement agencies to list every warrant online. If you think that a warrant may have been issued for your arrest, you should talk to an attorney.
Use caution. Unless you are certain that the accusation is only a minor one and will not result in criminal charges, it is best to consult with an attorney. This is especially true if a law enforcement official is asking you to give a statement or cooperate in an investigation. What you say, no matter how well-intentioned, can be misconstrued and may be used against you in a subsequent prosecution. Even if you are promised leniency in exchange for your cooperation, you can never retract what you have already said. To protect your rights, don’t make any statements without an attorney.
There are normally two things to consider in the crucial moments following an arrest. The first is securing the person’s release from jail as soon as possible. The best way to get someone out of jail varies from case to case. The second concern is to preserve and develop the arrested person’s ability to defend against the accusations. The accused should refrain from making statements to anyone concerning the case until he or she has consulted a criminal attorney. If you would like our assistance, contact us at (512) 474-6484.
Most cases in which criminal charges are filed can be resolved through skillful negotiation and without a trial. Negotiations can result in a wide variety of outcomes, ranging from a dismissal of charges to a plea bargain agreement involving incarceration. Of course, you should only accept a plea bargain once you have consulted who can help you investigate the facts of the case and study the terms of the plea bargain and other available alternatives. Though most cases are resolved without trial, sometimes trial presents a more attractive option. Therefore, it is important to keep the trial option open and to have an attorney who is both willing and able to represent you at trial.
There is no uniform answer as to what is best, because every situation is different. Obviously, it is helpful to remain polite and courteous with the arresting officer, but this does not necessarily mean you should submit to all of his or her requests. You can deal with the situation better if you know what to expect, what rights and choices you have, and the potential consequences of your decisions. The following outline tells you what to expect in a typical scenario:
If an officer suspects you of driving while intoxicated, he will question you on the roadside about your recent alcohol consumption, what food you ate, where you were, and where you were going. Expect the officer to audio/videotape the entire encounter. Most police cars have video cameras mounted in the front interior of the vehicle. The cameras can swivel to film what occurs in front of and to the side of the car. The officer arresting you will likely position the camera to record you as you are transported to jail. Most officers are equipped with remote microphones that can record your entire conversation from the initial roadside encounter to their parting words with you inside of the jail. Be mindful of this and guarded in your statements.
Though you must answer questions about your name, age and identification, you can refuse to answer any other questions. If you believe that you can present evidence favorable to your case by complying with the officer’s requests, you should do so. If you have any doubts, though, you should request to speak with an attorney before answering any questions. Make the request clearly and unequivocally, but politely. If the arresting officer is following proper procedure, they will terminate the interview whenever you request to speak with an attorney. If the officer fails to do so, continue to ask to speak with an attorney first and refuse to answer questions except for those about your identity.
FIELD SOBRIETY TESTS
In most DWI investigations, the officer will ask you to perform a series of sobriety tests. You can refuse to perform field sobriety tests. The officer can also ask you to take a breath test. You have the right to refuse these tests, though that refusal may later be used as evidence of your guilt.
You do not have the right to refuse to be videotaped, but you may refuse to perform the sobriety tests. If you believe that you can preserve evidence favorable to your case by complying with the officer’s requests, you should do so. You should be cautious though and if you have any doubts, you should request to speak with an attorney before submitting to the tests. When you ask to speak with an attorney, the officer should end the interview. If the officer continues, keep asking to speak with an attorney and do not submit to the tests.
ARREST & TRANSPORT
If the law enforcement officer thinks that you are guilty of an offense, he or she can arrest you. Typically, he or she will handcuff you and take you to jail. Remember that you are probably being recorded as you ride to jail. At this point it is unlikely that anything you say will change that; however, how you handle yourself may make the difference between being convicted or acquitted. It is always best to remain polite and respectful. Though you should cooperate with the arrest process, limit what you say and do not allow an officer to pressure you into admitting guilt.
BREATH & BLOOD TESTING
At the jail, officers will probably ask you to submit to a blood or breath test. Unless you had an accident and caused a life-or-death injury, Texas law says you may refuse to submit to breath or blood testing. Breath tests to determine body alcohol concentration are not always reliable. While state-paid experts routinely testify that the Intoxilyzer 5000 is accurate and reliable, several independent experts disagree. Consequently, the results may be inaccurately high or inaccurately low. If you have any doubts about your ability to pass the test, don’t submit to it before you talk with an attorney.
If you submit to a breath test and pass it, you stand a much better chance of winning your case. Sometimes, in fact, charges are not filed at all. If you submit to a breath test and fail it, you can later challenge the accuracy of the device at trial. However, you should realize that when you challenge a breath test, your trial becomes much more expensive because you need to hire private scientific experts to assist at trial.
To get records expunged, you first have to file a petition in district court. After the petition is filed, the court sets a date for the hearing, which no sooner than 30 days after the petition is filed. Usually the court will grant the expunction at that time, assuming you are eligible. From that point forward, you can legally deny the arrest which has been expunged. The arrest records, however, will not be destroyed immediately. Instead the court sends an order to the agencies that maintain the records telling them to destroy the records. Typically it takes up to 90 days for the agencies to destroy the records, but it’s important to keep following up with the agencies because they often fail to fully comply with the order.
The basic requirements for deregistration of persons sentenced in Texas state courts are:
- The person must not have committed more than a single offense;
- The offense must require a longer period of sex offender registration under Texas law than under federal law; (see the DPS Tiered Offense Chart) and
- The person must have completed sex offender treatment.
Two additional methods of deregistration include deregistration under the “Romeo and Juliet” statute in cases in which the victim was at least 15 years old and under a special procedure available to persons who must register as a result of adjudication of delinquent conduct as a juvenile. Persons convicted of offenses outside of Texas can’t deregister under the Texas law. Sometimes, however, you can have your name removed from the Texas sex offender registry in other ways, such as by contesting the determination of the requirement to register because the out of state offense is not substantially similar to a Texas offense requiring registration or other elements of Texas registration law do not apply. These cases tend to be more complex and require case-by-case analysis. Determining whether you can deregister or not often requires details and individualized analysis. There are several ways someone may deregister in Texas. Certainly, not everyone convicted of a sex offense may deregister. However, in some cases where it initially seems that a person cannot deregister, there are ways to accomplish removal from the Texas sex offender registry. If you would like to consult with Mr. Smith about your eligibility, call 512-474-6484 to schedule a consultation.
An attorney who is Board Certified by the Texas Board of Legal Specialization in Criminal Law must have experience in the preparation and trial of serious criminal matters. The attorney must also have extensive knowledge of state and federal constitutional law, evidence, procedure and penal laws related to criminal trials.
WHAT ARE THE REQUIREMENTS FOR BECOMING BOARD CERTIFIED?
To become Board Certified in Criminal Law, an attorney must have:
- Been licensed to practice law for at least five years;
- Devoted a required percentage of practice to criminal law for at least three years;
- Handled a wide variety of criminal law matters;
- Attended criminal law continuing education seminars regularly to keep legal training up to date;
- Been evaluated by fellow lawyers and judges;
- Passed a day-long written examination
Initial certification is valid for five years. To remain certified, an attorney must apply for recertification every five years and meet practice, peer review and continuing legal education requirements for the specialty field.
HOW CAN I IDENTIFY A CRIMINAL LAW BOARD CERTIFIED ATTORNEY?
You can identify a Criminal Law Board Certified attorney in several ways. A Criminal Law Board Certified attorney can indicate certification on business cards and letterhead by stating “Board Certified – Criminal Law – Texas Board of Legal Specialization.” The attorney may also display the Certificate of Special Competence awarded by the Texas Board of Legal Specialization and list the certification in legal directories and telephone listings under “Attorneys – Board Certified.”