What is a DWI >0.15?

“This is my first DWI arrest, so why am I being charged with a Class A misdemeanor?!”

Usually, when people get arrested for their first DWI, it is a Class B misdemeanor. However, if their blood alcohol is tested and it comes out above 0.15, then the case is increased to a Class A misdemeanor.

What should I expect with this DWI >0.15 charge?

If you are charged with a DWI above 0.15, the main thing to know is that your life will now include an ignition interlock device on your vehicle for a period of time. When you bond out of jail, the magistrate will include ignition interlock as a bond condition. That means, during the entire pendency of your case, you will have to have an ignition interlock on your vehicle.

Will it affect my occupational license?

If there is a license suspension in your case, you must get an occupational license if you want to drive legally during your suspension period. When you’re charged with DWI above 0.15, the occupational license will come with a provision mandating ignition interlock during the driver’s license suspension period.

Will it affect my probation if I get it?

Finally, if you get placed on probation, one of your conditions of probation will typically include ignition interlock. The statute says that you must have the ignition interlock on your vehicle for at least half the term of probation. However, the judge can insist that you keep the interlock on your vehicle for longer.

Should I avoid alcohol while my case is pending?

It’s very important that you do not have any alcohol in your system while you have the interlock in your vehicle. If you’re on bond with an interlock condition and the interlock blows are consistent with alcohol use, the judge can have you arrested. That mistake could also be viewed unfavorably by a prosecutor during plea negotiations.

How can a lawyer help me?

As with any DWI case, my first goal is to always find a way to either get the case dismissed or work out a plea deal that does NOT result in any type of DWI conviction.

When those things aren’t possible however, another way to successfully defend a DWI above 0.15 is to try to get the State to drop the above 0.15 allegation. If you can do that, the case becomes a Class B misdemeanor, and the ignition interlock does not have to be on your vehicle for at least half the period of probation.

What To Do When Pulled Over for DWI

The #1 question every criminal defense lawyer gets asked: What do I do when pulled over for a DWI?

But, my answer may surprise you.

“Don’t do any field sobriety tests, right?”
 

Most defense attorneys will tell you that you shouldn’t do any of the tests. Most of them will tell you that you should just tell the officer that you will not speak to them without a lawyer and politely refuse all requests and tests.

My advice is different, however. It’s true that you do not HAVE to take the field sobriety tests. But, keep in mind, if you take the advice above, there is a 100% chance that you’re going to get arrested that night. If you’ve only had a couple drinks and you feel you’re not intoxicated, it would really suck to make a decision that you KNOW will result in your arrest. The truth is, I’ve met many people who have been pulled over for DWI and were allowed to go home. Every single one of these people agreed to do the field sobriety tests.

“So I SHOULD do the field sobriety tests?”
 

Does that mean I think everyone should agree to do the standardized field sobriety test? Absolutely not.

Here’s my advice: if you get behind the wheel of your car and you know you haven’t had much alcohol and you don’t feel intoxicated, then you should consider doing the tests. However, doing the tests might not make sense if you know you have bad balance and coordination, since you may end up looking intoxicated, even though you’re not.

Now, if you make the decision to drive and you know you’re intoxicated, then you most likely should NOT do the tests. In that situation, you’re going to jail whether you take the tests or not, so performing the tests while heavily impaired will only hurt your case.

Bottom line is, If I had to choose between a DWI case where a person does a total refusal or a DWI case where a person does the standardized field sobriety test and performs relatively well, I would choose the latter. Jurors are very skeptical of people who refuse to do anything and are totally uncooperative.

Any other advice?

Always mention any physical impairments during your contact with the officer. Sometimes, clients will tell me that they couldn’t perform well on the field sobriety tests because they have a bad knee, for example. But, when we watch the video, they never mentioned it to the officer on the night of the arrest. If we bring up the knee in trial, a jury may view the “bad knee” as a convenient excuse that you only came up with after you met with a defense attorney.

Also, if it’s cold or you’re nervous or your shoes aren’t ideal for the tasks, etc. – say so during the testing! Let the jury and the prosecutor know what you were dealing with on the night you were arrested.

What juries actually care about
 

Here’s some information that may surprise you. It has been my experience that jurors don’t really care about how you perform on the field sobriety tests. I mean, you can’t be falling all over yourself, but jurors definitely do not expect perfection on those tests.

What jurors do care about, however, is the following:

These NORMAL actions matter much more to jurors than how you actually perform on some roadside coordination exercises.

Why should I hire an attorney for my DWI case?

I am Board Certified in Criminal Law and also certified in Standardized Field Sobriety Testing. There aren’t many defense attorneys who can say that. That certification gives me an advantage in DWI cases involving field sobriety tests. My training allows me to detect officer mistakes when they’re administering the sobriety tests. This allows for very effective cross-examinations in front of juries.

If you’ve been arrested for DWI, find a lawyer who is Board Certified in Criminal Law and is certified in Standardized Field Sobriety Testing.

Possession of THC Gummies: It Is a Felony!

THC gummies are everywhere! There’s no way they can be a felony, right?!!

Nowadays, THC gummies have become immensely popular. I hear stories from people telling me their mothers, who don’t even drink, have taken these gummies. Get-togethers that used to just feature alcohol, now often come with a side of THC gummies.

And, of course, every time someone visits Colorado you hear about the THC they brought back with them. So, the question now is, how much trouble can you get into if you’re caught with these THC gummies?

Just ONE gummy is a felony

The answer surprises people. Even one single gummy is a state jail felony. If you get an entire package full of gummies, you’re probably looking at a second or third degree felony charge.

It’s only THC after all

BUT…. there is good news. When you compare THC drug cases to all other types of felony drug cases, THC is treated much more leniently. A person can have a state jail felony-level THC case and another can have a state jail felony-level meth case and, all things being equal, the outcome will be much better for the person with the THC charge.

Why? Maybe it’s because THC is not nearly as detrimental to the body. Maybe it’s because THC is legal in other parts of the country. Or maybe it’s because the prosecutors may very well have had THC gummies themselves sometime in the last month and they feel guilty about prosecuting those cases.

The reason, I suppose, doesn’t really matter. The point is, if you have THC in your possession you will most likely be charged with a felony. But take comfort in the fact that it’s better than getting charged with meth or cocaine.

What can a lawyer do for me?

I’ve had great success in getting THC cases dismissed or, at the very least, reduced to misdemeanors or low-level felony deferred adjudication probations. If you’ve been charged with possession of THC, hire a board-certified criminal defense lawyer to protect your criminal record.

What is the Legal Definition of Possession?

Normal possession vs. LEGAL possession

In my line of work, I spend a lot of time explaining the difference between the definition of possession as we use it on a casual basis and the LEGAL definition of possession, as is required by the Texas Penal Code to prove drug possession cases. Just because “the stuff” is in your car, do you actually possess it?

For instance, clients often think that since drugs were found in their vehicle, that automatically proves that they were in possession, and they can’t fight the case. However, I tell them that just having drugs in your vehicle is not necessarily sufficient to prove legal possession. The State must still prove that you KNEW the illegal substance was in your vehicle. This aspect of knowledge makes all the difference when disputing legal possession.

Check out this example to illustrate legal possession

Adam decides to mail some drugs to Brian. To do so, he puts the drugs in a box and sends it to Brian via USPS. The mailman, doing his usual duties, picks up the box and walks it to Brian’s front door. Did the mailman legally possess the drugs? Of course, he didn’t. He was unaware that the box contained drugs. So, while he possessed the box, he didn’t legally possess the drugs inside because he had no knowledge of the contents within the box.

2 Common Situations in Drug Cases

So knowing this important difference, let’s consider two situations that resulted in drug possession charges:

What Can a Lawyer Do for Me?

The State must prove LEGAL possession beyond a reasonable doubt. This can be much more difficult than the State wants you to believe. A board-certified criminal defense attorney can spot this possible issue, conduct legal research to back up his legal position, and present that argument and case law to a prosecutor as a way of getting a case dismissed, or at the least, work out a favorable outcome.

Facing possession charges? Call our experienced firm today to get started on your case!

What is a Family Violence Allegation?

On TV and the news, they call it “domestic violence”. But you’ve been charged with “Assault- Family Violence”. So, what exactly does “Family Violence” mean legally?

Assault is simply causing injury to another. But a Family Violence allegation can be added to an Assault charge if the violence occurred against a member of a household or a person with whom there was a romantic relationship.

Examples of Family Violence cases

That means you can be charged with Assault – Family Violence if you punch your roommate for not paying his portion of the electric bill (member of the household) or if you slap your boyfriend for finding his Tinder account (a person with whom you’ve had a romantic relationship). For what it’s worth, it has been my experience that prosecutors will often drop a Family Violence allegation when the assault occurs between platonic roommates.

So what should you know about a Family Violence allegation?

A Family Violence finding can affect your gun rights. Specifically, if you are convicted of an Assault – Family Violence, it will be illegal for you to ever possess a gun again.

Also, a Family Violence finding can affect future charges. Specifically, if you are charged with Assault – Family Violence and you have a previous conviction or deferred adjudication for Assault – Family Violence, your new charge will be a third degree felony, instead of simply a class A misdemeanor.

Do you want a deferred adjudication for your Assault-Family Violence charge?

It’s not uncommon for the state to offer a deferred adjudication on an Assault – Family Violence, Class A misdemeanor. There may be benefits to the deferred adjudication, such as a dismissal upon successful completion of the deferred adjudication probation. However, it is important to understand that a person cannot seal or expunge that charge, even if he or she successfully completes the deferred adjudication. If you take a deferred adjudication plea deal, the arrest and the guilty plea will stay on your permanent criminal history.

How can a lawyer help me?

When I’m handling these matters, I always try to get the case dismissed. If that’s not possible, I try to get the State to go forward on a different charge to avoid the Family Violence allegation because of the consequences mentioned above.

Sometimes, we can have the alleged victim sign an affidavit of non-prosecution (which informs the State that he/she does not want to press charges). These affidavits can be very useful in securing dismissals or working out favorable resolutions.

We also interview witnesses who may have been present during the incident. If those witnesses are helpful, we have them sign affidavits so we can present them to the prosecutor as another way to get the case dismissed.

As you can see, a Family violence finding is quite serious. If you have been charged with an assault family violence, give us a call and let’s have a free consultation to discuss your case.

Should You Consent to a Vehicle Search?

What should you do if you’re caught “ridin’ dirty”?

It’s obviously never a good idea to have illegal substances in your vehicle. But, if you ever find yourself in that situation, you need to at least know your rights.

Only two things you MUST do when pulled-over by a police officer

  1. You must correctly identify yourself and
  2. You must get out of the vehicle if asked.

If you give a fake name or date of birth, you will be charged with providing false information to an officer of the law. And if you don’t get out of the vehicle when asked, the officer will yank you out and most likely throw another charge on you for that as well.

Officers often ask for consent to search a vehicle

If you’ve ever had a drug offense or if there is something that leads the officer to think you might have something illegal in your car, the officer will often first ask for consent to search your car.

When that happens, please know you do NOT have to give consent to search your car. Sometimes clients tell me they gave consent because they knew the cops would find a way to search their vehicle anyway. That may be true, but the moment you consent you have given up your Fourth Amendment right against illegal search & seizure. Basically, you’re doing the officer a favor. Now the officer never has to explain to a judge how he had probable cause to search your vehicle because you just gave up that right.

As I always ask my clients, “When was the last time an officer swung by your work to help you do your job?” They don’t. So why should you help him do his job when, at that moment, his job is investigating, and possibly arresting, you?

Without consent, an officer needs probable cause to search your vehicle

Don’t consent to search. Ever. So long as a defendant doesn’t consent, the state will have to prove that there was probable cause to search the vehicle at the time of the search. Notice I underlined “at the time of the search”. The fact that an officer may find something in the vehicle during the search has no bearing on whether or not they actually had probable cause before the vehicle search.

How do officers get probable cause to search the vehicle?

Oftentimes, officers are able to establish probable cause to search a vehicle through a person’s own admissions. If an officer asks and you admit that drugs are in your vehicle, you have now given him probable cause to search your vehicle. I’m not suggesting that you lie to an officer. What I am saying is that you don’t have to answer the question at all. You can simply say that you are not going to answer any questions without your attorney present.

Another very common way is the smell of marijuana. That will automatically create probable cause to search your car. The other most common form of probable cause I see is when an officer can see a drug in plain view. For instance, if an officer sees a baggie of marijuana sitting on the floorboard as he’s talking to you, that can establish probable cause to search your vehicle.

What can a lawyer do for me?

Officers are not always correct on what they think constitutes probable cause to search a vehicle. Sometimes, they are so intent on searching a vehicle that they get ahead of themselves and begin searching before probable cause has been established.

A board-certified criminal defense attorney can find those mistakes and leverage them for dismissals or, at the very least, favorable plea deals. Don’t ever assume the officer followed the law perfectly until you’ve had a board-certified attorney review your case.

Texas Board of Legal Specialization Recognizes Mr. Ryan Herbert Deck as Board Certified in Criminal Law

Recently, Attorney Ryan H. Deck received Board Certification in Criminal Law by the Texas Board of Legal Specialization. Out of the over 75,000 licensed attorneys in Texas, fewer than 900 have received this honorable title, and we are happy to share this news with all our clients. This news speaks to Ryan’s commitment to continuing his growth and advancement in criminal defense advocacy.

Since 1974, the Texas Board of Legal Specialization (TBLS) has stood as a benchmark for dependable advocacy in legal practice. Criminal law attorneys who wish to obtain this distinction must show a track record of successful legal practice, obtain references from local judges and attorneys, and pass a tough 6-hour exam focused on subject matter specific to criminal law. Meeting these requirements results in a certification valid for 5 years.

For our clients, Ryan’s recognition as Board Certified in Criminal Law means they can expect the highest quality of legal services when they choose our firm to represent them. Since 2003, Ryan has fought to protect each clients’ rights when they are in jeopardy. Obtaining Board Certification is simply one more step taken to ensure they get the best possible outcome for their situation.

Credit Card Abuse Charge

Facing Charges for Credit Card Abuse?

Credit Card Abuse is a very common offense. However, it is important to understand that using another’s credit card without his permission is a felony, regardless of how little is actually charged to the card. You could be penalized by 6 months to 2 years in a state jail facility.

While the state jail is not quite the penitentiary, one thing that must be kept in mind is that there is no “good time” given in a state jail sentence. That is, if you get sentenced to do 15 months in the state jail, you will do every single day of that 15 months. There is no “2 for 1 credit” like you hear about in county jails, or parole, like you hear about in penitentiaries.

Credit Card Abuse is often prosecuted after a police detective has had an interview with the person accused. Sometimes, the only way the State can make its case is through the use of the confession obtained in that interview. If you are contacted by a law enforcement officer regarding a credit card investigation, you should stop the communication and contact an experienced criminal defense attorney immediately. These investigators will attempt to set up an interview and they are often very insistent. Most people do not realize that they do not have to interview with the police officer.

When my office receives these cases, it is often after a person has been contacted by a detective. I will then get the name and number of the detective and speak with him regarding the case. I then make a determination whether having my client speak to the investigator is in my client’s best interests. Either way, I will be with my client throughout the entire process, advising him and ensuring that his rights are protected at all times. Before any decision is made, I will make sure my client knows all the evidence against him so that we can make an intelligent decision that will result in the best possible outcome. If there is not enough evidence against my client, I will advise that we go to trial and force the State to prove the allegations to a jury.

Possession of Marijuana Charge

One of the most common charges is Possession of Marijuana (POM). If the amount is less than 2 ounces (most cases are under 2 ounces) it is a Class B misdemeanor with a range of punishment of up to 180 days in jail and up to a $2,000 fine.

If you are charged with any drug possession case, you should immediately contact my office so that I can determine some key legal issues. Was the police officer’s initial contact with you legal? Was the search that lead to the discovery of the drugs legal? Can the State prove that you actually possessed the drugs? etc.

One of the worst mistakes people make is to keep drugs in their vehicle. It is much easier for the State to search a person’s vehicle than his home. Anther mistake people make is to consent to having the police search their body and/or their vehicle. You do NOT have to consent! The police may still search your vehicle, but they must have probable cause to do so and an experienced criminal defense attorney can often fight a search based on this determination.

In terms of plea bargains, the county in which you are charged with this offense makes a big difference in the overall outcome of the case. In Williamson County, a POM charge will likely result in probation or jail time (depending on your criminal history). However, in Travis County, I can often get the case dismissed and instead have my client plea to a Class C misdemeanor called Possession of Drug Paraphernalia.

One consequence of a POM conviction that many are unaware of is the 180 day driver’s license suspension. In order to avoid this suspension, an attorney should negotiate for a deferred adjudication. This type of probation is a probation like any other probation, but it does not result in a conviction. The DL suspension only happens when there is a POM conviction.

Vehicle Searches

One of the most common mistakes people make when dealing with the police
is allowing a police officer to search their car. It is very important
to understand that the police DO NOT have an automatic right to search
your vehicle. When asked, you may, and always should, refuse the search.
You may say to yourself, “There’s no reason to refuse the search
because I have nothing to hide.” But you have to remember that the
police officer will arrest you for anything illegal in your vehicle, whether
you know about it or not! And while you may have never had anything illegal
in your car, what if a friend left her prescription Xanax in the backseat?
Yes, you would in all likelihood be arrested in that situation.

However, if you do NOT give an officer consent to search the vehicle, the
officer can only search the vehicle if he has probable cause to believe
an illegal item or evidence of a crime (like
marijuana or other
drugs, for instance) is in your vehicle. This is where an experienced
attorney can provide a vigorous defense of your case. Just because the officer
eventually finds contraband in your vehicle does NOT mean he ever had
the right to search the vehicle in the first place. In these situations,
I will investigate the case thoroughly and determine whether the search
was legal. If the search was or may be illegal, I will file a Motion to
Suppress and have a hearing on the issue. If the Judge rules in favor
of that motion, the case is typically dismissed.

So remember, never consent to a search of your vehicle and, if you get
arrested for an offense arising out of a vehicle search, call
our office immediately and we can fight this charge and save your record.