Petition of Non-Disclosure Case for an Out of State Client
It was a full day in the criminal courthouse today. A petition of non-disclosure case started my day off doing at one of the county courts. My client was from out of state, so I had been working on this case for a while. Sometimes when you are out of state, and depending on the situation, the judges will work with defense attorneys and waive the appearance of the defendant. In this case, I told the judge we were simply trying to seal the record and the judge was willing to waive his appearance as long as the district attorney handling the case didn’t have any objections to the petition we were filing.
What is a Petition of Non-Disclosure?
A petition of non-disclosure is a special type of sealing of a criminal record that helps people who successfully complete a deferred adjudication. Not all cases qualify, if anyone has a specific question on a particular case you can call me or see the list of cases that are disqualified on my website. If a petition of non-disclosure is granted, the record is hidden from the general public, but it will always be visible to the government, governmental agencies, some places that are funded by the government, and law enforcement. So while it is definitely not full proof, it does seal the record for most jobs, apartments, schools, etc.
Criminal Information on the Internet
In today’s world of the internet, there are some websites that compile criminal databases and post information online. In my experience, some of these websites are cooperative if you contact them after the judge signs an order of non-disclosure (or expunction). It is always best to contact these websites, because if you don’t, then the information of the arrest is there for everyone to see.
In this particular case the district attorney’s did not have any objections since it was fairly straight forward and by law my client was eligible. The judge reviewed all of the information and signed the order prohibiting the release of his criminal record. So that is great for my client, as he is about to start looking for new jobs. This is just a small step in letting him move on from the mistake he made many years ago.
I also went on to court with a few other cases, but they were pretty much just reset for discovery purposes.
- Petition of Non-Disclosure – Granted
- DWI – Reset to try to get into the pre-trial intervention program
- Terroristic Threat – Reset to get the evidence
- DWI – Reset to wait on results from a toxicology lab
A Look into the Do’s and Don’ts of Speeding Tickets
I’m sitting in my office right now, on a Friday afternoon, miserable because I have to complete a 6 hour online Driver’s Safety Course for a speeding ticket that I got in Dallas in April. If I complete the Drivers Safety Course, my speeding ticket will be dismissed. So even though I would prefer being outside hitting some golf balls, or spending time with family, I know that I have to get this done. Keeping your driving record clean is just as important as keeping your criminal record clean.
Even though I do not actively practice traffic ticket defense, I know that the best advice is to NEVER pay a traffic ticket. Traffic tickets that are paid are convictions and turn into points on your driving record. For example, speeding 10 mph over the speed limit will cause you to get 2 points on your driving record. Points can lead to surcharges for your driver’s license, driver’s license suspensions, higher insurance rates, etc.
What do I do if I got a Speeding Ticket?
Generally the best practice if you get a speeding ticket is to immediately ask for a jury trial. You can do this yourself, or you can hire a ticket attorney relatively cheap. If the officer doesn’t show up on the day of trial the ticket is dismissed, and this happens more than you would expect. If the officer does show up, than you still have the option to work something out with the prosecutor. Usually this will be a deferred adjudication probation and a fee that is generally less than paying the ticket. A deferred is different for a class C misdemeanor. You don’t actually get a probation officer, you don’t report monthly, don’t take drug tests, etc. They just tell you not to get in trouble (get another ticket) for 90 days and your case will be dismissed.
In my case, it was too much of a pain to actually show up in court to fight the ticket, or hope the officer doesn’t show up. Luckily I haven’t had a traffic ticket in a while so I had the option to pay a fee of $109 and take a $25 online class to get it dismissed. I won’t have to go to Dallas for anything, I can just do everything by mail. So now here I am, watching videos, taking tests, and paying for my speed. If you are looking for a point to this blog, its: NEVER PAY A TICKET!
Why Leaving an Open Plea to a Judge can be Risky
Today in court while waiting to help another attorney translate for a Spanish speaking defendant, I witnessed a very interesting open plea hearing. It was a situation that happens sometimes in cases where the defendant knows he is guilty, wants to plead guilty, but the defense and the prosecution cannot agree on the punishment. In this situation the defendant has the ability to plead guilty and go before the judge without an agreed recommendation. This is basically an open plea where you are putting your life and the punishment in the hands of the judge.
The Perils of Open Plea and the Judges Decision
This type of plea can be very dangerous, especially when the judge does not tell you ahead of time what he/she is going to do, and when they ask for a hearing/testimony to decide. For example, if the charge is a 3rd degree felony that is eligible for probation, the judge could give probation, or he could give anywhere from 2 – 10 years in prison. This could be a scary situation for someone who is being offered the minimum of 2 years by the prosecutor, because if the judge decides that probation is not appropriate, the best that can happen is exactly what was offered, but it could be much worse.
Details of the Case
The case I was watching involved an elderly man who claimed a young man put a gun to his head outside of the young man’s home. Months later the old man returned because he wanted to teach the young man how it felt to be a victim. The facts were disputed, but what was undisputed was that a struggle ensued, and the young man shot the older man 4 times, causing him to lose the use of an eye.
The defense was asking for probation for a multitude of reasons, the prosecutors were asking for prison time. The defendant was very lucky and the judge gave him 5 years deferred adjudication, which is a special type of probation that if he completes it successfully will not be a conviction on his record.
In this situation it turned out good, but I have seen many similar situations where is does not turn out the way the defense wanted. Again, it’s very dangerous, and it’s important to talk to others to find out the judge’s tendencies before deciding to proceed in this manner.
In less serious cases, the judges will sometimes tell you ahead of time what they will do if you “plea open”, and that is not as scary. But it is definitely something that is case by case, and defense lawyers and defendants alike must proceed with caution.
A Look into SWEWP, Harris County’s New Program and a DWI Case that Touches on Plea Bargains
SWEWP is the new program in Harris County program, short for Sheriffs Weekend Work Program. In this program you are sentenced to jail time and a TDL suspension, but instead of actually going to jail you are allowed to do a weekend community service work program instead. In this program you get 3 for 1 credit. For example, if you get sentenced to 30 days in jail, you will need to work 10 days.
For this SWEWP program, the judge must first approve, you fill out a contract which has all of your work details. You are instructed that you have to work every Saturday and Sunday (from 7am – 3pm) until your sentence is complete. You go in front of the judge, plead guilty, the judge sentences you, and then you go to the SWEWP window at 49 San Jacinto for further instructions. This is a great option for individuals who do not want to do probation or go to jail. It is not automatic however; every judge is different as to what types of cases they will accept SWEWP plea bargains on.
DWI Case and Plea Bargains
Today I went to court with an individual who was being charged with Driving While Intoxicated (DWI). We have been working on this DWI case for many months, gathering all of the documents, evidence, etc. Many times it is in a person’s best interest to fight the case and go to trial. Many times, if you go to trial and lose you will get probation on a 1st time DWI. If you plead guilty to the DWI, the typical plea bargain is probation as well. So why would you plea guilty and guarantee yourself a conviction when you can at least have a chance at trial?
Why do People Take Plea Bargains
Most people decide to take plea bargains for a multitude of reasons –
- They don’t want to go to trial because they feel like they are going to lose
- They don’t want to risk getting a worse punishment
- They don’t want to pay for trial
- Their lawyer convinces them not to go to trial, etc, etc
In my client’s DWI case he was afraid of going to trial because he was not a citizen, and he was scared of possible consequences if he went to jail, and he also wanted to accept responsibility. In Harris County, a typical plea bargain is either 1 year probation (with no driver’s license suspension), or 30 days in jail (which is 2 for 1 credit, so 15 days, with a 1 year TDL suspension). That’s typical, but not always the case, a couple of judges allow fines only, its court specific.
- DWI – Client Entered SWEWP Program
- PCS – Reset
Update 3/1/2018: See my new article regarding Houston’s SWEWP on ericbenavides.com
Positive Results on Hit and Run, DWI and Assault-Family Member Cases
Today was a fairly busy attorney day, and I was in a bunch of courts. My first stop was a hit and run case. This hit and run case was different than most cases since my client was accused of hitting a cement post in front of a business (not another vehicle as we typically see). A lot of people don’t realize that if you damage property you should either contact the owner, or leave a note. Luckily, we helped our client get an agreement to dismiss this hit and run case, since no one was injured. Everyone was only concerned that the business is made whole with regards to money.
Had a quick reset on an assault-family member case that is very defensible and is likely either going to get dismissed or end up in trial. We also did a reset on a DWI case where we are still waiting on evidence. We finally got the dash cam video, so I need to review that with my client so we can decide together how we are going to proceed.
Possession of Criminal Instruments Case
And the most interesting case I saw today is a charge that in my opinion is pretty silly. Its along the lines of possession of criminal instruments. You can be charged if an officer believes that you are using normal household items, and were planning on using them in a crime. For example: a person gets charged with breaking into a car in his past. If an officer pulls him over today and he has things in his car that look like they could be used to break into a car (crow bars, tire irons, bricks, pliers, etc), you can be charged with a crime. This is pretty silly in my opinion, unless there is darn good proof that something was imminent. If someone is just driving around with tools, I think it is ridiculous to charge them. It calls for way too many assumptions on the officer’s part.
Subjective Charges and its Impact
The problem in general with charges that are subjective, is even if the officers are wrong, the defendant is still affected even if his case is dismissed. They go to jail, they get their vehicle towed, they have to pay a bond to get out of jail, they have to spend big money on a lawyer, they have to miss work multiple times to go to court, etc. It’s not fair, but it’s one of the many problems with the legal system.
- DWI – Reset
- FSGI – Set for Dismissal
- Assault-FM – Reset