Collin County Criminal Lawyers Blog

bo@kalabuslaw.com
Office: 972-562-7549
Collin County 24 Hour Jail Release 214-402-4364
www.rosenthalwadas.com

Late last week in Fairfax, VA, General District Judge, Ian O'Flaherty, dismissed the DWI case pending against former head of the Federal Aviation Administration, Randy Babbitt. According to police, Mr. Babbitt was pulled over for allegedly driving on the wrong side of the road in December. He was subsequently arrested for driving under the influence. When the news of the arrest became public, Mr. Babbitt resigned his position with the FAA.

Mr. Babbitt's case was set for trial and from what I can glean from the news accounts it appears Mr. Babbitt's lawyers filed a motion to suppress the traffic stop. This is lawyer speak for arguing that the police had no reasonable suspicion to stop Mr. Babbitt in the first place. In a DWI case, if the police had no reasonable suspicion to make the traffic stop, it does not matter how the person did on the filed sobriety tests, or what their blood alcohol content was because everything that happened after the bad stop is thrown out. And that is exactly what happened in Mr. Babbitt's case. After review of the police videotape of Mr. Babbitt's traffic stop at the suppression hearing, Judge O'Flaherty agreed that the stop was just a "hunch" and dismissed the case prior to prosecutors being able to present evidence of Mr. Babbitt's alleged intoxication. The videotape showed Mr. Babbitt making a normal left turn into a parking lot.

This goes to show that all DWI cases are alike and they can be successfully defended. If you are accused of a DWI, you should have your case reviewed by a competent attorney to make sure your rights are protected.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

Collin County has announced it changed its attorney writ bond policy for certain DWI
charges, which started this May. Until recently, a person booked in on DWI of Class B or A misdemeanor variety -DWI 1st, DWI 1st with a BAC (blood alcohol level) above .15, and DWI 2nd-that did not have bond set (you can't get out of jail without a bond being set) could have an attorney file a writ bond. The filing of the writ triggered a setting of a cash bond of $500 for the above DWI offenses. With the bond set, the person could then have the bond posted and get out of jail. The reason for the lag in the bond setting is because the Collin County magistrate judges only set bonds on weekday and Saturday mornings, usually between 8:00 am-10:00 am. So if a person is booked in after the magistrate has left (the booking in process can take anywhere from 4-12 hours or longer), then they are sitting in jail for another day. Also, if the arrest happens on the weekend--especially a holiday weekend, the person could be sitting in jail for up to 2-3 days waiting for a bond to be set. After an arrested person was released on a bond trigged by a writ bond filing, the person had to have a hearing before a Collin County Court at Law Judge within 10 days to determine whether a Deep Lung Device (DLD) needed to be installed on their vehicle.

Now, Collin County requires that with certain DWI arrests, the arrested person must be evaluated by the magistrate judge at the jail to determine whether a DLD is required and have the bond set at the jail instead of being able to have bond set via the attorney writ bond and the hearing within 10 days after release. From a writ bond perspective, the following DWI arrests are affected by the new policy:

• DWI 1st offense with a BAC higher than .15; and
• DWI 2nd;

This means that if you or a loved one are facing the above charges, the person will be spending more time in jail waiting to be seen by the magistrate judge to determine whether a DLD is required and having the bond set. There has been no mention of increasing the number of magistrate judges at the Collin County jail or whether their hours at the jail will be increased to help offset the new work load, so the folks booked on these charges can expect delays on getting out.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

Anyone can go out and have a few drinks, think they feel fine, and get behind the wheel to head home. On the way home, the person can be pulled over for some minor traffic infraction--7 mph over the speed limit, no signal on a lane change, a minor swerve within a lane, etc. These infractions would never get a second look from the police in daylight hours, but after midnight these are fair game for police looking for suspected drunk drivers. When the police go to the window of the vehicle and smell booze, the DWI investigation begins and then ends very quickly with the person being arrested.

Don't think it happens this way? Ask Jane McGarry, a longtime KXAS-TV Channel 5 Dallas news anchor, whom was arrested early Sunday in Dallas County on suspicion of DWI. If you live in the local area, I'm sure you've probably watched her deliver the news on one occasion or another. If you watch her often, you may even think you know her, or consider her part of your family.

According to the news reports, McGarry was pulled over in her Porsche by DPS on the Tollway after failing to signal a lane change. The news also reported McGarry failed the "walk and turn" and "one leg stand" field sobriety tests. Frankly, it does not take very much to fail these tests and the tests themselves are subjective in nature, so the term "failure" in my opinion regarding these tests can be greatly overblown.

McGarry also admitted to drinking three glasses of wine according to the news reports and refused the breathalyzer test --which is completely her right to do so. At that point, based on the timeline of a typical DWI investigation, she would have already been under arrest anyway. Next, the reports indicate that McGarry was then subject to a mandatory blood draw, which means in my mind based on the reported facts, following the breath test refusal the DPS trooper took the time to contact a judge to get a warrant to draw her blood if she refused the blood test as well. It will take some time to get those blood results back from the lab.

McGarry will be facing a tough and perhaps embarrassing road ahead, but it's a survivable road. With no prior convictions on her record, she's looking at a misdemeanor level offense. I always tell folks that come see me that misdemeanor level offenses are usually things that happen to good people on bad days. I do wish Ms. McGarry the best of luck on the defense of her case.

A DWI can happen to anyone. If ever in doubt, play it safe and call a cab because trust me when I say being charged with a DWI is road that should be less travelled.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

Let's say you are out with your 7-year old daughter at the mall doing some back to school shopping in Frisco, Collin County, Texas. Your spouse is at a doctor's appointment, so you have your hands full navigating your daughter through the mall by yourself. As the shopping day wears on, you both get hungry, so you stop at an Italian restaurant in the mall you both like. During the course of the meal you have a few drinks to unwind. It's time to leave, so you and your daughter start on your way. You feel pretty good, but you don't feel intoxicated as you pull the vehicle out of the mall parking lot.

As you are driving down the road your daughter shouts to you to get your attention about something and you turn around to see what it is. As you are turned around, you car drifts out of the lane and you sideswipe the car next to you. You pull into the closest gas station and so does the car you collided with. Your daughter is distraught and you are trying to calm her down while you exchange information with the other driver. The other driver has called the police to get an accident report, which you think is a fine idea. While the other driver is talking to you he smells alcohol on your breath. When the police officer shows up, the other driver--being a good Samaritan reports the alcohol on your breath and the officer has you conduct some field sobriety tests, which you don't do so hot on because you are distracted by your daughter and the stress of the day. Next thing you know, you are in the back of the police car in cuffs watching your daughter being taken away.

You learn that you are being charged with a DWI with a child on board which you also learn is a felony. A felony??!!! Yes, of the State Jail level which carries the punishment of a minimum of 180 days in jail up to two years and up to $10,000 fine. Some of the factors the State will weigh in determining the punishment are if you have any prior DWI convictions, the age of the child, and level of intoxication.

There is no defense to the passenger aspect of the charge. Basically, either the child was in the car or not. You'll need a lawyer that is skilled in attacking the driving while intoxicated charge. I examine every piece of evidence and the arrest, which includes the probable cause for the traffic stop, and tests the person was given--field sobriety/chemical tests. My goal in these types of cases as well, as any case I work on, is to gain as much leverage as I can to put the person's record in the best position I can through either getting the charges reduced or going to trial.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
Collin County 24 Hour Jail Release 214-402-4364
www.rosenthalwadas.com

Kids screw around. It's part of being a kid--and they all do it. I was no exception either and I have found memories of pushing the legal envelope with my buddies growing up. However, sometimes just screwing around can get you into serious trouble. Graffiti is one of those things that can get you in pretty deep in the eyes of the law.

So what is graffiti for starters? Well, it is when a person, without effective consent of the owner, intentionally or knowingly makes markings, inscriptions, slogans, drawings, or paintings on the owner's property with aerosol paint, indelible or permanent marker, or an etching or engraving device. The penalties for graffiti are stiff because when lawmakers think graffiti, they think its gang related. And let's face it; no one wants gangs wreaking havoc on the community.

As you can expect, the level of punishment is based on the amount of damaged caused. Essentially, if the amount of damage is less than $500, it's a Class B Misdemeanor ($0-$2,000 fine and up to 180 days in jail). If the loss is $500-$1500, it's a Class A Misdemeanor ($0-$4,000 and up to 1 year in jail). $1,500 to 20,000 is a State Jail Felony ($0-$10,000 and 180 days up to 2 years in jail). Graffiti is an automatic state jail felony, even if the damage is under $20,000, if it involves a school, church, cemetery, public monument, or community center, so this offense can get really serious really quick. $20,000-100,000 is a 3rd Degree Felony ($0-$10,000 and 2 up to 10 years in jail). $100-200,000 is a 2nd Degree Felony ($0-$10,000 and 2 up to 20 years in jail). And finally, over $200,000 is a 1st Degree Felony (($0-$10,000 and 5 up to 99 years in jail).

Think about that for a second-if you rack up a lot of money damage tagging cars buildings, bridges, motorhomes, etc., you could be potentially looking at life in prison.

If you are charged with a graffiti offense, you should consult a lawyer to discuss the best way to defend the matter to help get your life and record back on track.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
Collin County 24 Hour Jail Release 214-402-4364
www.rosenthalwadas.com

From time to time in my practice when I meet with people I hear the following--"I don't know why I need a lawyer, I know I messed up, I'm sure the judge will respect me stepping up to take the blame and go easy on my punishment." Or "I just want to take a deal and get this over with, I don't think I need a lawyer." Well, after I hear people say these things I think to myself that the old comic strip character, Pogo, got it right with the following quote-"We have met the enemy and he is us"

Defending a criminal offense can be tricky stuff. If you are charged with a crime, you should get a lawyer on board as early as possible. As I have discussed in other entries, people can waive most of their rights just by talking to a detective or police officer and cause themselves a great deal of harm.

When a person charged with a criminal offense shows up at a court setting without a lawyer, the judge will admonish them about the dangers and disadvantages of self-representation. The judge will highlight that the prosecutor is not there to help them and for that matter neither is the judge. This sounds like a warning right? Well, that's exactly what it is. Think of it this way--if you have a toothache do you go see a dentist to have the tooth examined, or do you take a pair of pliers and just rip your own tooth out to get it over with? Hopefully you go see a dentist because he/she knows the best way to repair your tooth and may not have to resort to pulling it. Also, what you do to your teeth can have lasting results. It's no different with your criminal record--a criminal conviction is there for life. A local lawyer will know how the prosecutor and court that your case is in work and will work hard to put your record in the best position possible and present you with as many options as possible. Some of which you may not have even considered.

For example, let's say you are looking at a theft charge in Collin County and you have no prior criminal record. If you are representing yourself, the prosecutor may offer you: 1) conviction with probation--and see if you bite on it; or 2) the best-case scenario, deferred adjudication. Either one may seem like a good deal to you because you are not getting jail time and that's great. Well, with the first option you get a conviction on your record that everyone (such as future employers) will be able to see. And with the second option, although the judge does not convict you if you complete probation without any trouble, the arrest will still be on your record. You can eventually shield the arrest record from the general public if you petition for a non-disclosure, but if you are trying to get a job that requires a professional license- such as doctor, lawyer, nurse, teach, etc., those employers will be able to see the arrest even if you have it non-disclosed. As you can see, there are some far-reaching consequences from taking a probation or deferred deal that you may not consider if you are representing yourself.

Now, consider the same example above except this time you hire a criminal defense lawyer. The lawyer reviews the facts and sees that you have no priors on your record. Armed with this knowledge, the lawyer negotiates with the prosecutor and gets you an interview for the Collin County pre-trial diversion program (a person cannot be considered for the pre-trial diversion program unless they are represented by a lawyer). You do well on the interview and get into the program. After 9 months you successfully complete the program and the case against you is dismissed. Your lawyer then files a petition for expunction on your behalf and the arrest and any record pertaining to the arrest is destroyed. You can now even legally say you have never been arrested and no future employer will see that you have been arrested.

The second scenario is much better than the first isn't it? You wouldn't pull your own tooth, now why would you take the same type of chance with your own criminal record?

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
Collin County 24 Hour Jail Release 214-402-4364
www.rosenthalwadas.com

An expunction is powerful stuff. If you are granted an expunction of an arrest in Texas, all records of the arrest itself, any jail detention and court records are destroyed! It is as if the arrest or events never took place. You can even legally deny the arrest ever occurred--extremely helpful in job interviews in today's economy!
Of course, every charm has its barb and expunctions are no different. The expunction process can be very technical in nature and it can be tricky to qualify for one.
Every case is different and requires review to determine whether the person qualifies for an expunction, but the short version of the statute is this-under Chapter 55 of the Code of Criminal Procedure a person who has been placed under a custodial or noncustodial arrest for a commission of a felony or misdemeanor is entitled to have all records and files related to the arrest expunged if one of the following applies:

• the person was found non guilty after trial;
• the person was convicted and then pardoned;
• the charges against the person were dismissed--such is the case in Collin County if a person successfully completes the pre-trial diversion program;
• the grand jury no-billed the case against the person;
• the person won on appeal; or
• the person received deferred adjudication on a Class C level misdemeanor.

If a person is found not guilty at trial, they are eligible for expunction immediately. In Collin County, if a person successfully completes the pre-trial diversion program, the DA will dismiss the case and the person is immediately eligible for an expunction. However, if the person's case was dismissed straight up without being in pre-trial diversion, or no-billed at the grand jury level for example, a person is still entitled to an expunction, but will have to wait until the statute of limitations runs on the case before they become eligible for the expunction. On a misdemeanor the waiting period is 2 years and on a felony level it is five years.

The 2011 legislature made some amendments to the Expunction Statute that took effect on September 1, 2011. The amendments affect the waiting period for expunction eligibility for Class C level misdemeanors. Most Class C's are offenses where people are issued tickets-assault by contact, minor in possession of alcohol, possession of drug paraphilia, theft under $50, etc. Class C offenses are punishable by fine only and there is no risk of jail time.

Basically, the amendments now enable a person charged with a Class C offense to move for an expunction after a waiting period of 180 days if:

• The case was originally filed as a Class C (no information or indictment presented);
• They have been "released" (case was dismissed outright or through deferred adjudication); and
• 180 days have expired from the date of the offense


How it works:

• The judge must order to prosecutor and police agency to retain their file;
• All other entities must destroy their records, including those who share your record with the public; and
• If prosecutor certifies that files are no longer needed, even prosecutor and police files are destroyed.

An expunction is a powerful tool to waste. If you think you are in the ballpark for an expunction, you should contact a lawyer to see if you are eligible and get it taken care of and clean up your record.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

The client was arrested for spray painting graffiti. As a result, the client was charged in Collin County with graffiti pecuniary loss of more than $1,500 and less than $20,000.

This was a very serious situation considering the client was young and now staring at a charge that carried State Jail Felony penalties that are 180 days up to 2 years in jail and up to a $10,000 fine. Plus my client was also staring at all the trimmings that come with a felony conviction--no right to vote, no right to carry firearms, no right to buy ammunition, etc. There was no brighter side to the situation either considering the facts of the case pretty much had my client in a box with no room to maneuver. This is a pretty heavy anchor around anybody's neck much less a young person that may have suffered from a lapse of judgment instead of being destructive and mean spirited.

My client and I both went to work on the case, the client working to pay back the victim for the damages caused and myself investigating the facts to gain what leverage we could to negotiate with the prosecutor. After several weeks of hard work on the case and restitution paid, the prosecutor agreed to lower the charges from the felony level to the misdemeanor offense level. This dropped the potential punishment range down to 0 days to 1 year in jail and $0 up to a $4,000 fine from which the client received no fine and probation. Better yet, the client will not have his rights cut in half and have to deal with the stigma of being a convicted felon.

As you can expect, my client was relieved and very pleased with the result-and also a little wiser from an experience that could have turned out to be much worse.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

The Internet is loaded with content. It's helpful, very helpful as in we can gather information at a speed unheard of just a few years ago. However, it can be a curse as in we can gather information at a speed unheard of just a few years ago. When shopping for merchandise it's human nature to compare items, or look for reviews and see what other people think about their experiences with the product. The Internet turned this type of information gathering on its head with speed and volume of information and as a result, it's a tremendous resource. But at the same time you can easily become inundated with too much information on such a search. Sticking with our product example, if you search long enough, you will find just as many good reviews as bad reviews on just about every product you look at. This type of information overload can make what you thought would be an easy choice into a difficult one. To a point you may even get paralysis by analysis and become extremely hesitant or gun shy to make a decision.

What if you are looking for a criminal defense lawyer? The Internet is just as clogged with information about lawyers (even Collin County Criminal Defense Lawyers) as any other product or service. How do you know who will be the lawyer for you? How will you know? It could be as simple as fit.....

What do I mean about fit? My first several years practicing law were spent at a large law firm where I worked defending companies in complex product liability litigation. It was high-pressure work and cases generally involved large sums of money. My clients were corporations and I thought the work was ok, but at the end of the day it was all about money--what will the case cost in terms of money to defend it versus money to just settle it before it went to trial. After a while it became hard to get amped up about that kind of work. I guess you could say, that type of work was not a good fit for me. When I left those cases behind and turned my law practice toward criminal defense, the work reinvigorated my faith in the law. My clients are now people instead of faceless corporations. Their cases involve their rights, their freedoms, and every case counts. The job keeps me sharp and on my toes. This job fits and I like it.

When you look for your criminal defense lawyer, you should find one that fits. Why is this important you may ask--my criminal case is not like a job or a needing a comfortable shoe? Fit is important because if you are facing criminal charges, no matter what type, the charges are serious. As a result you will undoubtedly have tough decisions to make and will be experiencing a great deal of stress. You will want a lawyer that will work for you to create as many options for you as possible and provide you as much time to consider said options. You will also want your lawyer to help eliminate fear of the unknown--which I believe is a great source of client anxiety that can be greatly reduced by explaining the process through which their case will proceed through the system. To accomplish this process, you and your lawyer will need to be able to communicate and this is where fit comes into play. You and your counsel should be able to see eye to eye so you can clearly understand the options you may have available. The attorney client relationship is just like any other relationship, it has to be built on two-way trust and respect.

In my opinion, it doesn't matter whether your lawyer is flashy or not, but what really matters is whether your lawyer has the ability to take your case to trial if necessary and you fit and feel comfortable with that lawyer. It's your criminal record that's at stake--don't just get a lawyer, get a lawyer that you want.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

Looks like we need to go no further than our own Collin County this week for an off-the-hook DWI story.

Richard Davis Callaway of Plano stood trial the first week of March for his 6th DWI. The trial was a bench trial meaning that the judge would hear the case instead of a jury and render a verdict. The judge would also determine the punishment if he found Mr. Callaway guilty. Following argument, the judge found him guilty and on March 7, 2012 sentenced Mr. Callaway to 40 years in prison.

That's headline grabbing by itself right?!-- 6 DWIs and a 40-year sentence! Well, that's not quite the whole story. Apparently, Mr. Callaway had appeared in court for the start of the trial and heard all of the State's evidence against him. Following the presentation of the evidence, the court took a recess for lunch, from which Mr. Callaway never returned. As provided by law, State District Judge Ray Wheless completed the trial without him. After the 40-year sentence was pronounced, a warrant issued for Callaway's arrest.

Mr. Callaway remained a fugitive from justice until Monday, when he turned himself in. Looks like this strange story has finally come to a close.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

"Look officer, if I could just explain..." Stop right there! Police officers love it when a person they have pulled over or a suspect they are investigating just opens up and starts to talk. The reason the police love it so much when you talk is it saves them a lot of time--because the talking usually results in an admission of guilt from you. "Oh no!" you think, "I would never do something like that!" Trust me, it happens all the time and you don't know the damage you have done to yourself until...you know.

For example, lets say you have just been pulled over by the police and the officer walks up and asks if you know why he is stopping you--almost everyone that has ever been pulled over has heard this. What do you say?--"Well officer, I rolled through that stop sign back there, I'm really sorry, and it will never happen again." Bam, you just admitted you disregarded a stop sign and in the best scenario you will get a ticket for it. The police don't really care if you are sorry, or if this is the first time you have been in trouble.

Let's make it a much worse scenario--let's add that while you made that statement to the officer, he smelled alcohol on your breath. Let's also add the officer thought you rolled through the stop sign, but from where he was parked he could not see you at the intersection because his line of sight of your vehicle was obstructed by trees. Although this is the case, he stops you anyway. Finally, let's add that as a result of your performance on the field sobriety tests you are arrested for DWI.

Continuing with the scenario--you are now facing criminal charges and hire a criminal defense lawyer. That lawyer goes to the scene and looks over the intersection and sees the problem with the officer's line of sight--if the officer did not see you roll the stop sign then he lacked reasonable suspicion based on our example to stop you in the first place. The now excited lawyer files a motion to suppress the stop (because the lawyer has the State right where he wants them) and sets the motion for hearing. This is a big deal because if the lawyer gets the stop thrown out then the case will be over because all evidence obtained after the bad stop would also be tainted. Well, at the hearing the judge and the now shocked lawyer learn all about how you admitted to the police officer that you ran the stop sign. And with that testimony from the police officer (and the in-car video evidence which shows your admission of just how it happened), the judge denies the motion and a great chance to get the case tossed is lost. This may sound extreme to you, but this type of scenario gets played out over and over again.

Every criminal offense has elements to it. It's been my experience that if an officer or detective is asking you questions he/she is fishing for information to meet the requirements of the charged offense. And people fall into the trap just about all the time. Why? Simple--most folks are taught from an early age to respect authority and want to cooperate with the police even though it is to that person's detriment. Why would a person do that?--most people just don't comprehend how serious the trouble is that they are in. Also, the deck is stacked against the individual big time because the police officer is highly trained in questioning, which results most times in people talking themselves into more trouble than they can talk themselves out of.

So if one day you find yourself in a situation where you are being questioned or in a "friendly talk" with a police officer, remember that you have the right to remain silent and I highly recommend you exercise that right.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

No question about it, having to cope with a DWI conviction is a traumatic experience. First there is the stigma of the conviction itself. Second, and to some more importantly, is the expense that stems from the conviction. For example, people placed on DWI probation will have the following lighten their wallets: a fine, probation reporting fees--which could be as long as 24 months, DWI education class fees, court costs, and possibly the expense of having an ignition interlock device placed on their vehicle--the tube a person has to blow into to start their car. In extreme cases, a person may be ordered to wear a SCRAM device on their ankles--which monitors for drugs or alcohol in the system and can be as much as $300-$400 per month.

To add insult to injury, DPS gets its piece of the action too, by putting a surcharge on the convicted person's driver's license. On a DWI first, if a person's blood alcohol is below a .15 a surcharge of $1,000 a year for a period of 3 years is imposed on their driver's license. If the blood alcohol level is above a .15, the surcharge is increased to $2,000 a year for 3 years. This surcharge adds up and is a lot of money.

What happens if you can't pay the surcharge? Simple, your driver's license will be suspended and then there will be more fees and penalties to reinstate the license. However, for those that are financially limited and meet the requirements, there is relief.

In September 2011, the legislature enacted a mechanism to allow surcharges to be waived. Under Rule 708.158 of the Texas Transportation Code, a person can ask the court where he/she was convicted in (including the court where the person agreed to a plea) to waive the DPS surcharges. Before the court can grant the motion, the person must qualify as indigent by fitting into one of the following categories:

• A copy of Defendant's most recent tax return, which reflects that Defendant's income or personal income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines OR
• A copy of Defendant's most recent statement of wages showing that Defendant's income or household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines OR
• Documentation from a federal agency, state agency, or school district indicating that Defendant receives assistance from the food stamp program or the financial assistance program established under Chapter 31 of the Human Resources Code OR the federal special supplemental nutrition program for women, infants, and children authorized by 42 U.S.C. Section 1786 OR the medical assistance program under Chapter 32 of the Human Resources Code OR the child health plan program under Chapter 62 of the Health and Safety Code OR the national free or reduced-price lunch program established under 42 U.S.C. section 1751 et seq. OR
• Documentation from a federal agency, state agency, or school district indicating that Defendant is a dependent as defined by Section 152 of the Internal Revenue Code of 1986, and the taxpayer claiming the person as a dependent receives assistance from the food stamp program or the financial assistance program established under Chapter 31 of the Human Resources Code OR the federal special supplemental nutrition program for women, infants, and children authorized by 42 U.S.C. Section 1786 OR the medical assistance program under Chapter 32 of the Human Resources Code OR the child health plan program under Chapter 62 of the Health and Safety Code OR the national free or reduced-price lunch program established under 42 U.S.C. section 1751 et seq. OR
• Other documentation presented to this Court. (Such as an Affidavit of the person explaining special circumstances)

If you have been convicted of a DWI and you think you can qualify under the above criteria, this may be just the relief you need.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

I had a predominately Spanish-speaking client that was arrested for DWI. The arresting officer and my client had difficulty communicating as was evident during the instructional portions of the field sobriety tests. The officer even attempted to talk to my client in slang Spanish several times. Following the field sobriety tests, my client was arrested and transported to the Frisco City jail.

After arrival at the jail, my client was taken to the intoxilyzer room--it's call this room because......that's where the intoxilyzer machine, or breath test machine is located. Prior to a breath test being administered, a person must be read the DIC 24. The DIC 24 is a document that is more commonly known as the statutory warning. It is a script that Texas police officers are required to read to Driving While Intoxicated suspects prior to requesting a breath or blood sample. Essentially, it informs the suspect of their statutory rights, and the consequences of refusing to submit to the request for breath or blood.

In my client's case, the DIC 24 was read to my client in English only. However, my client was read his Miranda warnings (the right to remain silent) in Spanish. Following the warnings, my client consented to a breath test, which he failed.

After I reviewed the video of what happened in the intoxilyzer room, I realized that my client may not have understood his rights under the DIC 24, specifically that he had a right to refuse to take the breath test that he had taken. I brought on a translator that went over the DIC 24 with my client in detail and confirmed what I thought--my client did not understand that he could have refused to take the breath test.

Armed with that information and further case development, I filed a motion to suppress the breath test (have it thrown out) because the officer had made my client submit to the breath test without his consent because of the lack of understanding due to the language barrier. At the hearing on the motion in court the arresting officer testified that there was not a Spanish version of the DIC 24 at the Frisco City Jail at the time of my client's arrest or at the time of the hearing. About a week after the hearing, I got an email from that same arresting officer informing me that the Frisco intoxilyzer room now has a Spanish version of the DIC 24. Go figure--it's interesting to be a part of progress I guess.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

"But I've never been in trouble before, doesn't that count for something??!!" I hear this statement/question a lot in my practice from a person accused of a crime. I also hear "But my son/daughter has never been in trouble before--that's going to help right?" Unfortunately, in most cases the answer might be difficult to take.

Take for example, a person named Jack who is about 50 years old. Jack is on the fast track to make equity partner at his law firm where he has worked for the past 25 years. He has a loving wife and three boys-one of which just graduated from college. Jack has also been a model citizen during his life and has no criminal record. On the way back home from his son's graduation party, Jack in a hurry to return home and respond to a few high pressure work e-mails, is speeding about 10 miles an hour over the limit on the toll road in Frisco.

Jack catches the attention of a DPS Trooper patrolling the toll road. The Trooper sees Jack's vehicle speed is over the limit on his radar and pulls Jack over. The Trooper smells alcohol and within 45 seconds of talking with Jack, the Trooper asks if Jack has had anything to drink. Jack, being honest, responds that he's "had a few beers at his son's graduation party." Jack is asked to step out of the car and after a less than stellar performance on the field sobriety tests, Jack is arrested on charges of DWI. At the police station Jack consents to a breath test because he has nothing to hide, and he respects authority. The test shows that Jack's blood alcohol is above the legal limit.

This is about the time I hear Jack say --"But I've never been in trouble before that will count for something right?"--during his consultation with me in my office. Jack is not eligible for the Pre Trial Diversion Program (PTD) (a great Collin County program that allows a first time offender the opportunity to enter a program that will give the offender the opportunity to get the charge off his record) because a DWI is a category of crime that is not allowed into PTD. Jack is now in a situation where all of his hard work in life and prior good criminal record will have no impact on whether he is guilty or innocent of DWI. The pending charge will surely stress his home life and may put his career advancement in jeopardy among other things. Jack will ultimately have to face the decision of taking a plea deal and being convicted or setting the case for trial and taking his chances of whether a jury will find him innocent or not.

A case like the example above is very tough for some people to understand and I don't blame them. Essentially, life and a good criminal record can get turned on its head in one evening and it can be tough to comprehend. Now, a good background or lack of a criminal record does have its time and place to be heard about. Unfortunately, it's after a judge or jury has found a defendant guilty and that defendant is now convicted of the crime. The proceeding then goes into the punishment phase of the trial. The prior good behavior will then become part of the evidence and be weighed to determine the jail time served or probation.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

The client was arrested for walking away from a junked-out vehicle that the police found marijuana, bags, and seeds. This sounds like serious trouble for my client right? It sure is a perfect example of being in the wrong place at the wrong time right? Well, things began to unravel for the State of Texas from this point forward. First, the arresting agency initially thought the amount of marijuana seized was slightly over 4 ounces, which would have been a felony level offense. However, upon a proper weighing of the drug, the amount actually obtained was 3.74 ounces, which qualified the offense as a Class A misdemeanor--the highest level of misdemeanor punishable up to 1 year in jail and a $4,000 fine.

Next, on the eve of trial, in response to a pending motion to suppress the marijuana based on an illegal search, the prosecutor agreed to reduce the Class A charge to a Class C misdemeanor paraphernalia charge. Finally, my client received deferred adjudication on this charge as part of the negotiation. This essentially reduced the offense to the equivalent of a traffic ticket. And following a 6 month non-reporting probation period (basically just keep your nose clean during the probation period), my client will be able to get the charge off his record--just like it never happened.

So what potentially was thought to be a felony drug charge, was filed as a high level misdemeanor, and ended as something my client can expunge off his record as if it never happened. As you can expect, my client was relieved and very pleased with the result.