WHAT TO DO AND WHAT NOT TO DO DURING ARREST

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If you are ever arrested, there are some common sense “Do’s and Don’ts” to remember.  It is not a pleasant experience, but you will get through it ok with a little patience.

DO:

-Remain polite.

-Provide your name, address, date of birth and politely let them know you are invoking your 4th Amendment right to remain silent. Then REMAIN QUIET.

-Request that your family or friend that is present take vehicle or personal items into their possession.

-Provide your Driver’s License.

-Stay alert on your ride to the jail (you are likely be video taped).

-Have your lawyer present whenever you are questioned.

-When they ask you to sign your property slip, read it to make sure what is on it.

DO NOT:

-Do not resist arrest (likely to add additional charges).

-Don’t let your friends or family argue or become combative with the police. (It could reflect upon your case).

-Do not try and explain your side to the officer (not likely to help and may hurt your defense).

-Get the names and contact information of any witnesses at the scene.

-Do not give them permission to search.  If there are witnesses express your refusal loud enough for the witnesses to hear.

-If the police are searching, do not assist them in the search.

-Do not allow police to enter your vehicle or home, even if it is to retrieve items such as your clothes or personal items (they will naturally search any area you allow them into).

-Do not talk about your case with your family and friends while you are in jail (assume your conversations are being monitored).

-Do not talk with other inmates about your case (you don’t know who they really are).

Daniel L. Morris, The Morris Firm, (214)357-1782, info@themorrifirm.net

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TEXAS DWI TAKING A SPECIMEN

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A person in Texas who has been stopped for suspicion of Driving While Intoxicated (DWI) is often asked to provide a specimen to check their blood alcohol content.  The test may be a vapor test, breathalyzer or a blood sample test.

The Statute states that a specimen may not be taken if refused by the suspect.  Refusal will cause the suspects Texas Drivers License to be automatically suspended for not less than 180 days.

After a refusal, the officer will generally be required to obtain a warrant to take a blood sample.  In Texas is there now precedent that the suspect’s blood may be drawn without a warrant. The Court determined that to be valid, such a warrant-less search must

(1) Be supported by probable cause,

(2) occur in the presence of exigent circumstances, in which the delay necessary to obtain a warrant would result in the destruction of evidence,

(3) Employ a reasonable test, and

(4) Be executed in a reasonable manner.

If you have been arrested for a DWI and the specimen was taken without your consent make sure to consult with a Texas attorney familiar with these issues.

The Morris Firm, info@themorrisfirm.net, (214)357-1782

Texas Defense: SEARCHES WITHOUT A WARRANT

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Just as a person may consent to a conversation with a police officer, a person may similarly consent – or fail to adequately object – to a request to search their pockets, belongings, handbags, car, home, cellphone, computer, or office. Absent consent, the police still have the power in certain circumstances to search a person’s clothing, car, and home.

SEARCH A PERSON’S BODY

Frisk for Weapons (before arrest): When a reasonable person in the officer’s circumstances would have believed there was a danger to the officer’s safety or the safety of others (objective standard). Terry v. Ohio, 392 U.S. 1 (1968).

Plain Feel (during frisk): If in the course of a lawful frisk of a defendant’s clothing a police officer feels an object whose contour or mass make it immediately apparent that it is contraband, it may be seized.  Minnesota v. Dickerson, 508 U.S. 366 (1993); Griffin v. State, 215 S.W. 3d 403 (Tex. Crim. App. 2006).

Search Incident to Arrest (after arrest): Once a person is arrested the police may perform a thorough search of the person before they are booked into jail. Arizona v. Gant, 129 S.Ct. 1710 (2009).

SEARCH OF A VEHICLE

Search Incident to Arrest: In Gant, the Supreme Court narrowed the search incident to arrest exception as it pertains to vehicle searches. A search incident to arrest is permissible in two contexts:

  • A search for weapons based on concerns about officer safety. An officer may search the car for weapons if the defendant is within reaching distance of the passenger compartment.

A search for evidence of the offense that the defendant was arrested for. Where an officer has probable cause to believe that a driver is committing or has committed a crime, and also has probable cause to believe that the car contains contraband or evidence of that crime, he may search the entire car, and any container inside that could reasonably hold the evidence or contraband. US v. Ross, 456 US 798 (1982); Carroll v. US, 267 US 132 (1925).  However, Where the defendant was arrested for a traffic offense, there is no reasonable basis to believe that the car contains evidence of that offense. Gant, 129 S.Ct. 1710.

Inventory Search: to protect defendant’s interest in property, to protect police from unmeritorious claims, and to protect against dangerous objects that might be inside the car. The burden is on the state to show that:

  1. standardized inventory procedures are in place, and
  2. those procedures were followed. Benavides State, 600 S.W.2d 809 (Tex. Crim. App 1980); State v. Stauder, 264 S.W.3d 360 (1984).

An inventory search cannot include a search of the defendant’s cellular phone. The police must obtain a warrant to search the contents of a cellphone. Riley v. California, 134 S.Ct. 2473 (2014).

SEARCH OF A RESIDENCE

Exigent Circumstances:  Circumstances present urgency that would prevent officers from getting a warrant;

  1. Officers have probable cause to believe that items relating to the crime will be found or that thesuspect will be found; and the search is limited in scope by the nature of the emergency.

Example: The odor of marijuana standing alone isn’t enough to give officers the right to enter a residence and search without a warrant. Steelman v. State, 93 S.W.3d 102 (Tex. Crim. App. 2002); Moulden v. State, 576 S.W.2d 817 (Tex. Crim. App. 1978).

  1. Emergency Exception: Where an officer reasonably believes someone inside is seriously injured or is in immediate danger of being seriously injured. The reason for entry must be divorced from detection, investigation, or acquisition of evidence. Gonzalez v. State, 148 S.W.3d 702 (Tex. App.—Austin 2004); Laney v. State, 117 S.W.3d 854 (Tex. Crim. App. 2003).

Search incident to arrest: Police may search area of house where Defendant could reasonably reach toretrieve a weapon or dispose of drugs. Chimel v. California, 395 U.S. 752 (1969).

Protective sweep: Police may conduct a protective sweep of the house to make sure no one is hiding. Thisis a very cursory, visual sweep. Maryland v. Buie, 494 U.S. 325 (1990).

The Morris Firm, info@themorrisfirm.net, (214)357-1782

Texas DWI: Driving While Intoxicated

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In Texas, a person is legally intoxicated and may be arrested and charged with Driving While Intoxicated (DWI) with a .08 BAC (blood or breath alcohol concentration). However, a person is also intoxicated if impaired due to alcohol or other drugs regardless of BAC.

If you do not have a commercial drivers license, did not have an accident or child in the vehicle while driving intoxicated, the penalty ranges are as follows:

1st Offense

  • Up to a $2,000 fine.
  • Jail time between 3 days and 180 days.
  • License suspension for up to 2 years.
  • Annual surcharge up to $2,000 for 3 years to keep your           license.
  • DWI intervention or education program.
  • Possible ignition interlock device.

2nd Offense

  • Up to a $4,000 fine.
  • Jail time between 1 month and 1 year.
  • License suspension up to 2 years.
  • Annual surcharge of up to $2,000 for 3 years to keep your license.
  • DWI intervention or education program.
  • Possible ignition interlock device.

3rd Offense

  • Up to a $10,000 fine.
  • State prison time between 2 years and 10 years.
  • License suspension up to 2 years.
  • Annual surcharge of up to $2,000 for 3 years to keep your license.
  • DWI intervention or education program.
  • Possible ignition interlock device.

The Morris Firm, info@themorrisfirm.net, (214)357-1782

Texas Criminal Law: Possession of Marijuana

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Under Texas Law, a person commits the offense of possession of marijuana if they knowingly or intentionally possess a usable quantity of marijuana.

Possession of marijuana is classified as a misdemeanor or felony depending upon the amount the person has in their possession.

Two ounces or less:  A Class B Misdemeanor which is punishable by up to 180 days in jail and/or a fine up to $2,000.

More than two ounces but less than four ounces: A Class A Misdemeanor which is punishable by up to 1 year in jail and/or a fine up to $4,000.

More than four ounces but less than five pounds:  A State Jail Felony which is punishable by 180 days up to 2 years in jail and/or a fine up to $10,000.

More than five pounds, but less than 50 pounds:  A Third Degree Felony which is punishable by two to ten years in jail and/or a fine of up to $10,000.

More than 50 pounds but less than 2,000 pounds:  A Second Degree Felony which is punishable by two to twenty years in jail and/or a fine of up to $10,000.

More than 2,000 pounds:  A felon offense that is punishable by five to ninety-nine years in jail or imprisonment for life and a fine up to $10,000.

www.themorrisfirm.net  info@themorrisfirm.net, (214)357-1782

Texas Crimes: Theft

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The Texas Penal Code §31.03 explains what theft is in the State of Texas.

THEFT. (a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

(b) Appropriation of property is unlawful if:

(1) it is without the owner’s effective consent;

(2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or

(3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.

 Basically, you commit theft in the state of Texas when you take something that doesn’t belong to you, without consent or any other legal justification for doing so, and at the time of the offense you have no intention of giving the property back to its rightful owner.

The Morris Firm, info@themorrisfirm.net, (214)357-1782

Texas Criminal Charge for Public Intoxication

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Sec. 49.02. PUBLIC INTOXICATION. (a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

A charge of Public Intoxication in Texas is a Class C Misdemeanor as long as the person is 21 years of age or older.  Minors are handled under Section 106.071, Alcoholic Beverage Code.

For the charge to be applied, the state must prove not only that the person was intoxicated, but that it was to a degree that they may endanger themselves of another.  It is also a defense if the person was administered the substance as a part of the person’s professional medical treatment by a licensed physician.

The Morris Firm, info@themorrisfirm.net, (214)357-1782.