Author Archives: Eric Benavides
Why do officers take away your drivers license?
As a Houston DWI Attorney I represent a lot of individuals who are charged with Driving While Intoxicated. These cases are very complex and there are always multiple things going on at once. One perfect example is the individuals’ driver’s license and what happens to it when you get charged with DWI. If you are a defendant and you are charged with DWI you are probably going to have your license taken away.As a Houston DWI Attorney I represent a lot of individuals who are charged with Driving While Intoxicated. These cases are very complex and there are always multiple things going on at once. One perfect example is the individuals’ driver’s license and what happens to it when you get charged with DWI. If you are a defendant and you are charged with DWI you are probably going to have your license taken away.
One of the first questions I usually get is, “is my license suspended?” The answer is NO! For some reason law enforcement officials are trained to take your driver’s license away when you are charged with DWI. They do not care if you are innocent or guilty; they just automatically take it from you. They usually end up giving you a temporary driving permit which is good for 40 days after the date of arrest. But why do they take your actual license away?
From talking with officers it seems the reason is that they assume that defendant in DWI’s are not going to request an Administrative License Revocation (ALR) Hearing within 15 days of their arrest. When a defendant doesn’t request an ALR, then the license is automatically suspended after 40 days. The problem with assuming is that it hurts the individuals who do request the ALR.
So if this happens to you it is important to contact a good Houston DWI Attorney who can advise you what to do to get your real license back. It can be very annoying having a paper license with no picture. Sometimes it’s not even about the license itself, but more about having an ID. And why should you not have your license when it’s not legally suspended? It makes no sense, and in order to get the license back as soon as possible make sure to contact a DWI Lawyer in Houston who knows what to do to help you.
Grand Jury & No Bills
If you are a defendant and you are charged with a felony you should almost never plead guilty before your case is indicted. In Texas every felony case is passed in front of a grand jury who decides whether or not to indict the case. If you have a Houston Criminal Defense Attorney they will probably talk to you about the indictment and explain the process to you. Most of the time cases seem “hopeless” and it is a foregone conclusion that the case will be indicted, but every once in a while a case who everyone (including defense attorneys and prosecutors) think will be indicted gets no billed (or dismissed).If you are a defendant and you are charged with a felony you should almost never plead guilty before your case is indicted. In Texas every felony case is passed in front of a grand jury who decides whether or not to indict the case. If you have a Houston Criminal Defense Attorney they will probably talk to you about the indictment and explain the process to you. Most of the time cases seem “hopeless” and it is a foregone conclusion that the case will be indicted, but every once in a while a case who everyone (including defense attorneys and prosecutors) think will be indicted gets no billed (or dismissed).
Many times defendants take plea bargains quickly and just sign a “waiver of indictment”. The judge usually goes over this document and asks again whether or not the defendant wants to plead guilty before the grand jury looks at the case. Again, if you are pleading guilty, then it is very likely that the grand jury will indict, but you never know!
Today is a perfect example. I had a client who was charged with a felony and the case was not very good for the defense. The prosecutors were offering prison time or many years of probation. Even though it looked like trial was going to be the only option to “win” the case, and that was my recommendation, my client decided he did not want to go to trial and wanted to take probation. I advised him not to do that because the case had not been indicted, and I wanted to talk to the DA one last time. I received a surprise today when I found out that my client’s case had been no billed by the grand jury.
While I am shocked that the case was no billed, I am sure any Houston Criminal Defense Attorneywould be as thrilled as I am. It makes you wonder how many people have pled guilty quickly when a grand jury would possibly no bill a case. So if you are a defendant you should definitely talk to your Criminal Lawyer in Houston about the grand jury process.
Motion for Non-Disclosure
The biggest mistake a Houston Criminal Defense Attorney can make is telling their clients after a deferred adjudication probation, that their record is clean. Deferred adjudication is a type of probation where your case is dismissed if you finish the probation successfully. So it is true that you do not have a conviction…BUT THE ARREST RECORD REMAINS VISIBLE TO EVERYONE!The biggest mistake a Houston Criminal Defense Attorney can make is telling their clients after a deferred adjudication probation, that their record is clean. Deferred adjudication is a type of probation where your case is dismissed if you finish the probation successfully. So it is true that you do not have a conviction…BUT THE ARREST RECORD REMAINS VISIBLE TO EVERYONE!
The problem with deferred adjudication is that everyone who works in HR departments understands that you pled guilty to be placed on deferred, and the only reason that your case was dismissed was because you did probation. To employers, apartment complexes, and schools, that dismissal is the same thing as a conviction. They don’t care that you have a piece of paper saying that your record is clean. In order to seal your record after you finish deferred, you need to file a motion for non-disclosure.
A motion for non-disclosure does not completely wipe your record clean, it will still be visible to governmental agencies and law enforcement, but THE GENERAL PUBLIC WILL NOT HAVE ACCESS TO THE RECORD!
Apartments, schools, and public jobs will no longer see that you were arrested, thus making your life less stressful. In order to be eligible you must have finished your deferred adjudication probation. With some misdemeanors you must wait two years after you finish probation to file for the non-disclosure. Other types of misdemeanors allow you to file immediately upon completion of the probation (some judges has rules that you must wait a certain amount of time depending on the type of crime. Call a local Criminal Lawyer in Houston to get a more personal evaluation). HOWEVER, IF YOU WERE ON DEFERRED FOR A FELONY YOU MUST WAIT FIVE YEARS AFTER YOU COMPLETE YOUR DEFERRED ADJUDICATION PROBATION BEFORE YOU CAN FILE.
There is always one big catch. You are NOT ELIGIBLE TO A NON-DISCLOSURE if you have been previously convicted of or placed on probation for any of the following:
- Sexual performance by a child
- Possession of production of child pornography
- Unlawful restraint, kidnapping, or aggravated kidnapping of anyone under the age of 17
- Attempt, conspiracy, or solicitation to commit any of these listed offenses
- Capital murder
- Murder
- Indecency with a child
- Sexual assault
- Aggravated sexual assault
- Prohibited sexual conduct (incest)
- Aggravated kidnapping
- Compelling prostitution
- Injury to a child, elderly individual, or disabled individual
- Abandoning or endangering a child
- Violation of protective order or magistrate’s order
- Stalking
- Burglary of a habitation with the intent to commit any of the above offenses
- Any other offense involving family violence
You also will not be eligible to get a non-disclosure if you were convicted of another crime after you finished your deferred adjudication! I know it is confusing, so if you have any questions, find a Houston Criminal Defense Attorney that is willing to assist you.
The Texting While Driving Defense
Texting and driving is a dangerous. It is also a great way to get pulled over and suspected of DWI. Every Houston DWI Attorney has had a client come into their office and explain the reason they were weaving was because they were texting a friend, not because they were drunk.Texting and driving is a dangerous. It is also a great way to get pulled over and suspected of DWI. Every Houston DWI Attorney has had a client come into their office and explain the reason they were weaving was because they were texting a friend, not because they were drunk.
Studies have shown that texting while driving is actually more dangerous than driving while intoxicated and driving while on the phone combined. I mean, think about it. When you are drunk you are watching the road. When you are talking on your phone, you are watching the road. But when you text, you are looking at your phone searching for each letter/number.
So what does this have to do with DWI? When you swerve around the road it looks like you are drunk! So if you have had anything to drink at all you should just turn your phone off and put it away. It is not worth being arrested. You might be driving legally (under a blood alcohol level of .08), but you are going to appear as if you were more intoxicated based on your bad driving. Prosecutors love to use bad driving facts against you in court, so don’t give them any more ammunition than necessary.
Some attorneys have used a texting while driving defense, and sure, the studies related to texting while driving could show that was the reason for the poor driving. But what the jury is going to be able to interpret is, “Well he wasn’t legally drunk, he just looked that bad on the road because he was doing something that has been proven to be even more dangerous than driving drunk!”
So legally it could be a good defense, but you sure are not going to win the heart of jurors. But if you are stuck in the unfortunate position of being charged with DWI when you were not drunk, then you need to contact a Houston DWI Attorney as soon as possible. This defense is just one of many creative defenses that have been thrown around the courthouse.
Of course every case is different, so this might not pertain to you. But hopefully you can read this, store it in the memory bank, pass it on to friends, and try to prevent it from happening in the future. Again, if something does happen, a good DWI Lawyer in Houston should be able to break the case down for you and explain every possible outcome.
Pre-Trial Intervention (Diversion) Program
As a Houston Criminal Defense Attorney I get the opportunity to defend many young individuals during stressful times in their life. I see many young adults (17-21) who have gone their entire lives without being in trouble. Usually they are charged with some misdemeanor such as theft that stemmed from a brief lack of judgment. They typically enter my office scared that they ruined their future and are looking for guidance. Luckily in Harris County there is a pre-trial intervention program that is set up to give a second chance to young people who deserve it.As a Houston Criminal Defense Attorney I get the opportunity to defend many young individuals during stressful times in their life. I see many young adults (17-21) who have gone their entire lives without being in trouble. Usually they are charged with some misdemeanor such as theft that stemmed from a brief lack of judgment. They typically enter my office scared that they ruined their future and are looking for guidance. Luckily in Harris County there is a pre-trial intervention program that is set up to give a second chance to young people who deserve it.
The process starts by submitting a pre-trial intervention application through the chief prosecutor in the court the case is in. A basic application includes a letter of apology to the victim/complainant, a letter from the defendant explaining why they need this extraordinary opportunity, letters of recommendation, indication of future goals/plans, and indication of a stable lifestyle/mitigating facts. The court evaluates the application and decided whether or not to offer admission into the program.
If accepted, the pre-trail intervention (or pre-trial diversion) program is typically one year long (can be more for more serious offenses). During this year the case in question is reset and pending. Using a recent theft case I handled as an example, what is usually included in the program is an anti-theft class, a certain amount of hours of community service (typically 80), regular reporting to the probation department (even though you are technically not on probation), random drug tests, and a drug/alcohol evaluation. The fees associated with the program are typically not more than $60 per month as per the agreement.
The bulk of the program can be completed in the first couple of months. After that, the goal for the rest of the year is to not get in trouble. When the defendant returns to court in one year, the assistant district attorney runs a criminal background check on the defendant, and if everything comes back clear the case is dismissed.
This is a true dismissal that can expunged off a record (which destroys the record for everyone). Any good Houston Criminal Defense Attorney would tell you that a pre-trial intervention dismissal is much better than a deferred adjudication (which is a type of probation) dismissal. The big difference is the fact that pre-trial intervention dismissal is eventually expunction eligible while the deferred dismissal is only eligible for a motion for non-disclosure (which will keep the record visible to law enforcement and government agencies). If you have a case you think might be eligible make sure to contact a Criminal Lawyer in Houston who can help you.