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Brandon Barnett

Additonal Notice for Suppression Hearing

No Additional Notice Required for Suppression Hearing on Trial Date

By | Trial Advocacy

Texas Court of Criminal Appeals Determines That There Needs to be No Additional Notice Provided to the State When Holding a Suppression Hearing On the Day of a Trial

Additonal Notice for Suppression HearingThe Court of Criminal Appeals recently handed down a decision affirming a trial court judge’s decision to hold a suppression hearing on the day the trial was set, but before voir dire or any trial proceedings occurred. State v. Velasquez, 2018 Tex. Crim. App. LEXIS 52. After a prior motion for continuance by the State was granted, the defense submitted 16 pretrial motions, including a motion to suppress evidence. On the day of the trial, both sides announced ready, and the judge chose to hold the suppression hearing before jury selection. The State objected because they were not provided with proper notice of the hearing (and because their witnesses were not present to testify for the motions hearing before jury selection), but the objection was overruled and the judge ruled in favor of the defendant. The Fourth Court of Appeals reversed the trial judge’s decision, but that was overturned by the Court of Criminal Appeals, affirming the trial court ruling on the motion.

Texas Code of Criminal Procedure Article 28.01

The State based its appeal on Article 28.01 of the Texas Code of Criminal Procedure. This statute enables the judge to schedule pretrial hearings (Section 1), requires notice of these hearings to be provided to the defense (Section 2), and gives the required means of providing notice (Section 3). The State claimed that it was not provided adequate notice of the pretrial suppression hearing under this statute, and therefore, should have been given an opportunity to delay the hearing and trial.

Section 1

Article 28.01(1) allows for the court to set a pretrial hearing before it is set for a trial upon the merits. The Court of Criminal Appeals recognized that this creates two separate settings and that the court must provide adequate notice for any new and separate hearing. Included in this list of settings is a suppression hearing in Section 1(6). The court also acknowledges that many suppression hearings are done as a part of trial, and that parties should be capable of arguing for or against suppression at the time of the trial. In this case, the State was not prepared for the suppression hearing and refused to argue, forcing the court to rule in favor of the defendant.

Section 2

Article 28.01(2) requires the court to provide notice of at least 10 days to the defendant in order to allow the defendant enough time to respond and raise any additional preliminary matters. The State argues that it is entitled to notice, however, the Court points out that the statute only provides for notice given to the defendant. The Court decided that the State has no right to additional notice for a pretrial motion that will be handled on the day of the trial, so long as notice of the trial day setting was given to the State.

Section 3

Article 28.01(3) establishes the acceptable methods for providing notice to the defendant. Notice can be given through an announcement in open court in front of the defendant and his/her attorney, personal service to defendant, or by mail.

Court of Criminal Appeals’ Conclusion

Ultimately, the CCA held that it was appropriate for the trial court to hold a suppression hearing on the same day as trial, despite not giving additional notice to the State. The notice of the trial setting was sufficient to make the State aware of the possibility of a suppression hearing, and the State should have been ready for that hearing. The court sees a distinction between a pretrial setting and handling a matter just before the trial begins. Because suppression hearings are often held in conjunction with trials, this action was proper. Article 28.01 does not apply in this instance because there was no new, separate setting, and the party complaining about notice was the State. The Court understands that there could be improvements to the notice requirements, but as a member of the judicial branch, they are not empowered to make those changes.

Bus Driver Consent Search Wise 2017

Can a Bus Driver Give Consent to Search the Passenger Compartment?

By | Search & Seizure

The Case of the Not Too “Wise” Bus Passenger

United States v. Wise, 877 F.3d 209 (5th Cir. TX 2017)

Bus Driver Consent Search Wise 2017FACTS: In this case, police officers were conducting bus interdictions at a Greyhound bus stop. After a certain bus stopped, the driver got off the bus and the officers approached him requesting consent to search the passenger cabin of the bus. The bus driver consented to a search and two experienced narcotics officers in plain clothes boarded the bus. The officers did not block the exit or otherwise obstruct any of the passengers from departing the bus. One officer walked to the back of the bus while the other officer remained at the front.

The officer at the front of the bus noticed a man who was pretending to be asleep. The officer found this suspicious, because in his experience, criminals on buses often pretended to be asleep to avoid police contact. The officer walked past the “sleeping” man and turned around. The sleeping man (named Morris Wise) then turned to look back at officer, revealing that he was not asleep after all. The officer then approached Wise (now awake) and asked to see his bus ticket. Wise gave the officer a bus ticket, bearing the name “James Smith.” The officer had a hunch that James Smith was a fake name. The officer then asked Wise if he had any luggage with him on the bus. Wise said yes and motioned to the luggage rack directly above his head.

Wise then gave the officers consent to search the duffle bag in the overhead compartment. The officers did not find any contraband in the duffle bag. The officers also noticed a backpack near Wise and asked if the backpack belonged to him. Wise denied ownership of the backpack. The officers then asked the other passengers about the backpack and no one claimed it, so the officers removed the backpack at the bus driver’s request.

Outside the bus, a trained police canine alerted to the backpack. The officers then cut a small lock off the backpack, searched it, and found seven brick-type packages that appeared to contain cocaine.

The officers then went back onto the bus and asked Wise if he would mind getting off the bus to speak to the officers. Wise complied with the officers’ request and got off the bus. The officers asked Wise if he had any weapons, which he denied that he had any weapons, and then they asked him to empty his pockets.

From his pockets, Wise gave the officers his ID card with bearing the name “Morris Wise” and a lanyard with several keys attached to it. Not surprisingly, one of the key opened the lock that the officers had to cut off of the backpack (that Wise said was not his). The officer then arrested Wise, and the government charged him with several drug-related offenses.

Motion to Suppress the Search as the Fruits on an Illegal “Checkpoint Stop”

Wise filed a motion to suppress the evidence as a violation of his 4th amendment right against unreasonable searched and seizures. The district court held that the officers’ conduct in searching the bus constituted an unconstitutional checkpoint stop. In addition, the district court held that the bus driver did not voluntarily consent to the officers’ search of the luggage compartment where the backpack was located. As a result, the district court suppressed all evidence the officers seized after the stop.

The government appealed to the Fifth Circuit Court of Appeals.

First, the court held that the district court incorrectly characterized the officers’ bus interdiction as an unconstitutional checkpoint. The court noted that the Supreme Court’s cases involving checkpoints involve roadblocks or other types of conduct where the government initiates a stop to interact with motorists. In this case, the officers did not require the bus driver to stop at the station. Instead, the driver made the scheduled stop as required by his employer, Greyhound. In addition, the officers only approached the driver after he had disembarked from the bus, and the driver voluntarily agreed to speak with them. The court concluded that the interaction between the officers and the driver was better characterized as a “bus interdiction.”

Second, although Wise had a reasonable expectation of privacy in his luggage, the court held that as a passenger, Wise did not have a reasonable expectation of privacy in the luggage compartment of the commercial bus. As a result, the court concluded that Wise had no standing to challenge the officers’ search of that compartment, to which the bus driver consented.

Third, the court held that the officers did not seize Wise, within the meaning of the Fourth Amendment, when they approached him, asked to see his identification, and requested his consent to search his luggage. Instead, the court concluded that Wise’s interaction with the officers was a consensual encounter because a reasonable person in Wise’s position would have felt free to decline the officers’ requests or otherwise terminate the encounter.

Finally, the court held that Wise voluntarily answered the officer’s questions, voluntarily emptied his pockets, and voluntarily gave the officer his identification and keys.

Can Police Stop You for Driving on the Improved Shoulder of the Road?

By | Drug Crimes

State v. Cortez (Tex. Crim. App. 2018)

Jose Cortez was stopped because a Texas State Trooper allegedly observed him driving on an “improved shoulder” in violation of Texas Transportation Code § 545.058. The officer testified that Cortez touched the white “fog” line of the road and crossed it twice. During the ensuing stop, the trooper searched Cortez’s vehicle and found drugs. Cortez moved to suppress the stop (and the search) arguing that the officer lacked probable cause to initiate the stop.

What is Driving on the Improved Shoulder?

The Texas Transportation Code also defines “improved shoulder” as a “paved shoulder” with the “shoulder” being the “portion of the highway that is:

  •  adjacent to the roadway;
  • designed or ordinarily used for parking;
  • distinguished from the roadway by different design, construction, or marking; and
  • not intended for normal vehicular travel.”

The Texas Transportation Code §545.058 prohibits drivers from driving on the shoulder unless it is necessary and done safely, “but only:

  1. to stop, stand, or park;
  2. to accelerate before entering the main traveled lane of traffic;
  3. to decelerate before making a right turn;
  4. to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;
  5. to allow another vehicle traveling faster to pass;
  6. as permitted or required by an official traffic-control device; or
  7. to avoid a collision.”

Court Suppressed the Traffic Stop Because Driving on the Shoulder Did Not Violate Any Laws

In this case, the trial court determined, after careful review of dashcam footage and officer testimony, that Cortez did not appear to touch the fog line, and that even if he did, that was not a violation of the law. The courts also reasoned that if Cortez did cross the line, he was doing so to let the officer pass and to exit the highway, both reasons justified by the statute. The court of appeals affirmed the trial court’s suppression of the stop. The Texas Court of Criminal Appeals agreed and affirmed the lower court’s ruling.

What Does This Mean for Texas Drivers?

First, it is not illegal to touch the white line of the shoulder under Texas Transportation Code § 545.058. If you are pulled over for this, the courts have determined this is not a violation of the law and does not provide a reasonable basis for an officer to pull you over and search your vehicle.

Second, if you do cross the white line, that is not necessarily a violation. If one of the acceptable reasons above is present, then it is permissible to cross the shoulder line and the police will not have a reasonable basis for stopping you and should not stop you or search your vehicle.

Overall, you should pay close attention when you are driving. But the courts have acknowledged that it is nearly impossible to drive in a perfectly straight line. The police do not automatically have a reasonable basis to stop you if you cross the white line, and they have NO basis for stopping you if you merely touch it. However, as we have always said, if you are stopped, be polite, be courteous, and do not consent to any searches.

NOTE: Presiding Judge Keller dissented in this case and would hold that driving on the white fog line does constitute driving on the improved shoulder in violation of the transportation code.

Drone Laws TX Drone Registration

Rules for Drones | Drone Registration and Penalties for Failure

By | Criminal Defense

Drone Laws TX Drone RegistrationDrones or Quadcopters were a popular Christmas gift this year. While many new drone owners are probably preoccupied with learning to fly without getting the propellers stuck in trees or crashing them over their neighbor’s fence, they need to take a moment to learn about the federal registration rules for unmanned aircraft.

*Federal drone registration had been struck down by an appeals court in May of 2017, but the National Defense Authorization Act that was passed in December 2017 reinstated drone registration.

Do I Have to Register My Drone?

Maybe. Any unmanned aircraft system (“drone”) that weighs more than .55 pounds must be registered with the FAA. Depending on the size of the drone, it can be registered under:

  • Part 107, Small UAS Rule,
  • Section 336, the Special Rule for Model Aircraft, or
  • 14 CFR Part 47, the Traditional Aircraft Registration

Registration Under The Special Rule for Model Aircraft

Most people register their drone under this provision. The Special Rule for Model Aircraft allows for registration of a drone between 0.55 lbs and 55 lbs for recreational use only. Under this registration:

  • A person is allowed to fly their drone within their line of sight,
  • A person is required to follow the community-based and nationwide guidelines,
  • A person is not allowed to fly their drone over an airport or to interfere with emergency response units, and
  • A person must notify an airport when they are flying within five miles of an airport.

In order to register under the Special Rule for Model Aircraft, you must:

  • Register as a “modeler” with the FAA,
  • Be at least 13 years’ old,
  • Be a legal United States citizen or legal permanent resident, and
  • Label your drone with the registration number in case it is lost or stolen.

This registration, which can be completed online costs $5 and lasts for 3 years.

Registration of Drones Between 0.55 lbs and 55 lbs Under the Smalls UAs Rule

The Small UAS Rule allows for registration of a drone between 0.55lbs and 55lbs for recreational and commercial use. Registration is REQUIRED by the FAA. Under the Small UAs Rule a person may:

  • Fly their drone at or below 400 feet (Class “G” airspace)
  • Fly during daylight or civil twilight
  • Fly at or below 100 miles per hour.

With a drone registered under Part 107, the pilot:

  • Must yield to manned aircraft
  • Cannot fly directly over people,
  • Cannot fly from a moving vehicle unless you are in a sparsely populated area.

In order to obtain your registration under the Small UAs Rule, you must:

  • Be at least 16 years old,
  • Have a valid credit card, email address, and physical/mailing address,
  • Pass an aeronautical knowledge test at an FAA-approved testing center,
  • Undergo a Transportation Safety Administration security screening, and
  • Denote the make and model of your aircraft when applying for registration.

The Small UAS Rule registration, which can be completed online costs $5 and lasts for 3 years.

Traditional Aircraft Registration for Drones Greater Than 55 Lbs

Traditional Aircraft Registration must be completed for any unmanned aircraft weighing over 55 pounds. The paperwork for drones greater than 55 pounds can be found on the FAA website and must be turned in via regular mail. Drones over 55 lbs will require an N-number that you have to submit to the FAA. The FAA website lays out the necessary information for an application.

This registration costs $5 and lasts for 3 years.

What is the Penalty for Flying a Drone Without Registering it?

Failure to register an unmanned aircraft can result in regulatory penalties up to $27,500 and criminal penalties up to $250,000 and/or imprisonment for up to 3 years. Penalties are determined on a case by case basis and will vary based on the judge.

The FAA provides on its website:

“There is no one-size-fits-all enforcement action for violations. All aspects of a violation will be considered, along with mitigating and aggravating circumstances surrounding the violation. In general, the FAA will attempt to educate operators who fail to comply with registration requirements. However, fines will remain an option when egregious circumstances are present.”

Do you have to register your drone if you only fly over your own property?

Even if flying over your own property, the FAA still requires registration of your drone. The penalties for failure to register an unmanned aircraft will apply even if the drone does not leave your property.

What Other Drone Rules Should I Be Aware of?

Every registration allows for different flight regulations, so pay close attention to what you register for and what that particular registration allows you to do. The FAA has developed an app called “B4UFLY” which gives you important information about your location and the flight restrictions in that area. This app is recommended by the FAA to help avoid violations of the registration limitations. For any additional questions/concerns, visit the FAA website.

DWI No Refusal Christmas Fort Worth

Twas the Night Before No Refusal Weekend in Tarrant County

By | DWI

Tarrant County No Refusal Period for the Christmas and New Year’s Holidays

Tarrant County typically implements a No Refusal period during major holidays.  Being in the Christmas spirit, we thought that our No Refusal warning would be better if it rhymed.  Enjoy our Christmas No Refusal poem.

DWI No Refusal Christmas Fort Worth

Twas the night before Christmas, the police are all out,
Searching for drunk drivers that might be about.
They’ll be near the parties at restaurants and taverns.
They’ll pull your car over for bizarre driving patterns.
They’ll give the field test, “walk the line, heel to toe,”
And if you misstep, to the pokey you’ll go.
They’ll ask you to blow in the breath test device,
To see how much eggnog you’ve had on this night.
And if you refuse, to a magistrate they’ll dash,
To get a search warrant as quick as a flash.
So take an Uber this Christmas, a lesser price you’ll pay.
Don’t drink and drive on this No Refusal Holiday.

False Report Child Abuse Texas

Penalties for Falsely Reporting Child Abuse or Neglect in Texas

By | Child Abuse

False Report Child Abuse TexasUnder Section 261.101 of the Texas Family Code, persons are required to report if they have cause to believe that a child’s physical or mental health or welfare is being or has been adversely affected by abuse or neglect. The report is to happen immediately (or within 48 hours if the reporting person is a professional). The law further grants “immunity” to the person who reports or assists in the investigation if that person had “good faith” when they made the report.

What is a “Good Faith” Report of Child Abuse or Neglect?

Put simply, a “good faith” report is an honest and sincere report. The law wants to encourage folks to report so that the State can investigate and ensure that children are not being abused or neglected. However, falsely (or without good faith) reporting child abuse to CPS or other agencies is not to be used as an act of retaliation or aggression toward others. A false report damages the child’s welfare in itself because the child will be subjected to an investigation where none should have been pursued. Unfortunately, we have seen this occur in the context of highly contested family law cases and in some criminal cases as well. More recently, there were allegations of a false report made to smear a political opponent.

What are the Legal Penalties for Falsely Reporting Child Abuse or Neglect in Texas?

Section 261.107 provides the civil and criminal penalties associated with falsely reporting child abuse in Texas. This section provides that “a person commits an offense if, with the intent to deceive, the person knowingly makes a report…that is false.”

Criminal Penalty for False Report

Knowingly making a false report of child abuse or neglect in Texas is a State Jail Felony offense. The punishment range for this offense is 180 days to 2 years in a State Jail Facility and a fine up to $10,000. Further, if a person has been previously convicted of this same offense, a second offense is a Third Degree Felony which subjects the person to a prison term of 2 years up to 10 years.

Attorney’s Fees Reimbursement for the False Report

As a monetary penalty in connection with the criminal case, the court shall order any person that is convicted of making a false report to pay the reasonable attorney’s fees incurred by the person against whom the report was originally made.

Civil Penalty for False Report

The Family Code further provides that any person who engages in false reporting is liable to the State of Texas to pay a civil penalty of $1,000. The Texas Attorney General is responsible for bringing the action to recover the civil penalty.

What Do I Do if Someone Has Made a False Report to CPS About Me?

First of all, contact an attorney. Depending on the posture of the investigation, you may need representation and advice to help get through the allegations, even if they are false. If, however, CPS has already ruled out the allegations and no criminal action has been pursue, you should first gather your evidence. We have been with people at the police station when they made reports that they had been targeted by false CPS allegations. It is our experience that the police agency will want you to bring proof that the report was false or made in bad faith. Simply because CPS closed out the investigation and determined that there was “No Reason to Believe” that the allegations were true does not necessarily mean that the reporting individual acted in bad faith. Collect your text messages, social media messages, witness statements, and other evidence before you go to the police station to claim that you were the victim of a knowing false report. Because the State wishes to encourage reporting, it is reluctant to punish a person who reports unless there is clear cut evidence that the report was made in bad faith.  Again, it is best to contact an attorney to help you through this.

Seal DWI Conviction Texas

Denton County’s First DWI Non-Disclosure Granted

By | DWI

Seal DWI Conviction TexasWhen Governor Abbott signed the new DWI sealing law allowing for first-time DWI convictions to be non-disclosed, we began to pull records for our past DWI clients to see if any of them were eligible to have their conviction sealed. We filed the first DWI non-disclosure petition in Denton County as soon as the law took effect in September 2017. Our client was exactly the type of person for whom this new law was written:

  • He was convicted of Class B DWI
  • He successfully completed all terms of his probation
  • More than 5 years have elapsed since he completed probation
  • He had no other arrests on his record either before or after this DWI conviction

Sealing a DWI with a BAC Exceeding 0.15

One of the wrinkles in our client’s non-disclosure petition involved his blood alcohol content. The new DWI sealing law does not allow DWI convictions to be non-disclosed if the person was convicted of having a BAC over 0.15 (Texas Penal Code Section 49.04(d)). Our client’s case involved a BAC over 0.15, but he was not convicted under Section 49.04(d), but rather under 49.04 without any finding of a particular BAC. Our client’s DWI case happened before the legislature added paragraph (d) to the DWI law in 2011. So, as we saw it, our client still qualified for the new sealing law.

The DWI Non-Disclosure Hearing

Having alleged all of the qualifying conditions in our petition, there wasn’t much to the hearing when the time came. The Denton County District Attorney did not oppose our petition and we were able to take the proposed order to the judge without the need for an evidentiary hearing. We were prepared with the offense report, clerk’s records, and criminal history for our client, but none was needed. The judge gladly signed the order for non-disclosure and our client became the very first person in Denton County to have his DWI conviction non-disclosed.

Our client, who has only had this one encounter with the criminal justice system, was thrilled that this uncharacteristic mistake can finally be put behind him. We look forward to helping more people seal their DWI convictions in both Tarrant and Denton Counties. To see if you might be eligible to have your DWI case sealed, contact our team today at (817) 993-9249.

*If you are a Texas attorney and need assistance drafting a petition or order for a DWI non-disclosure, please reach out and we will be glad to help.

Scholarship Winners BHW 2017

2017 Scholarship Winners | Veteran Law Student & Military Dependent

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2017 Scholarship Awards

 

Scholarship Winners BHW 2017This was the second year for our law firm to offer scholarships – one to an undergraduate, and one to a law student. In honor of the sacrifices of our military veterans, we wanted to connect the scholarships to military service. The first scholarship is a $500 award for a Military Veteran Law Student and the second scholarship is a $500 award for a Military Dependent undergraduate student. Throughout the year, we received several applications from very deserving students. We appreciate all of the students that took the time to apply for the scholarships and wish them all the best in their studies. For those students that were not selected, we invite you to apply again next year as we plan to continue the scholarship offers as an annual award.

2017 Winner – Military Veteran Law Student Scholarship

The winner of the 2017 Military Veteran Law Student Scholarship is:

LCDR OMAR HASAN

Omar Hasan is a Navy veteran with over 20 years of active service to our country. LCDR Hasan is set to attend Regent Law School in VA Beach, VA. Congratulations Omar Hasan. Fair winds and following seas and best wishes as you continue toward your law degree.

2017 Winner – Military Dependent Scholarship

The winner of the 2017 Military Dependent Undergraduate Scholarship is:

JESSICA OLMEDO

Jessica Olmedo is a US Army dependent whose father is served, among other places, in Operation Just Cause in 1989. Ms. Olmedo currently attends Texas Christian University in Fort Worth, Texas and is pursuing a degree in Business Information Systems and Supply Chain Management. Congratulations Jessica Olmedo. Best wishes as you continue in your studies.

More Information About Our Scholarship Opportunities:

For more information about how to apply for these scholarships in future years, please visit the scholarship pages:

Military Veteran Law Student Scholarship

Military Dependent Scholarship

Stale Traffic Violation Zuniga Drug Case

Does a 15-Minute Delay Render a Traffic Violation Stale? | U.S. v. Zuniga

By | Drug Crimes

How Long Can an Officer Wait to Pull a Vehicle Over After Observing a Traffic Violation?

Stale Traffic Violation Zuniga Drug CaseUnited States v. Zuniga (US Court of Appeals, 5th Cir. 2017)

In this case, a San Antonio police detective, who was working with an informant, suspected that Appellant Zuniga was transporting methamphetamine in his vehicle and followed it. The detective witnessed the driver of the vehicle fail to engage the turn-signal as required. He did not pull the vehicle over at that time, but radioed the traffic violation to other officers. Approximately fifteen minutes later, an officer who had received the radio dispatch but had not witnessed the turn-signal violation, stopped the vehicle. During the stop, the officer encountered Appellant, who was riding in the passenger seat, and his girlfriend, who was driving the vehicle. The officer arrested Appellant on outstanding warrants and his girlfriend for driving without a valid driver’s license.

The arresting officer conducted a search of Appellant incident to arrest and found methamphetamine on his person. The officer also searched Zuniga’s car and found a backpack containing methamphetamine, a handgun, and other evidence related to drug trafficking.

As a result, the federal government charged Appellant with several drug-related offenses.

Motion to Suppress for Unreasonable Traffic Delay

Appellant filed a motion to suppress the evidence seized during the stop, arguing that the fifteen-minute delay in conducting the stop for the turn-signal violation rendered the information provided by the detective who observed the violation stale.

The trial court denied the motion to suppress, holding that the delay in conducting the stop was not enough to render the information stale or the stop unlawful. The court did not state a specific time limitation to which officers must adhere when conducting a traffic stop. Instead, the court stressed that stops following traffic violations must be reasonable in light of the circumstances. In this case, the court found that the fifteen-minute delay was reasonable. As soon as the officer observed the turn-signal violation, he immediately relayed this information to other officers, although none of those officers were in position to stop the vehicle at that time.

Collective Knowledge Doctrine Allows an Officer to Make a Stop for a Violation He Did Not Observe

The trial court further held that the collective knowledge doctrine allowed the arresting officer to lawfully stop the vehicle even though he did not personally observe the traffic violation. The collective knowledge doctrine allows an officer, who does not observe a criminal (or traffic) violation, to conduct a stop when that officer is acting at the request of another officer who actually did observe the violation. Here, the detective who observed the turn-signal violation communicated this information to the traffic officer who ultimately stopped the vehicle; therefore, the detective’s knowledge transferred to the officer who conducted the stop and made the arrest.

The 5th Circuit upheld the search and the conviction, holding that reasonable suspicion to stop the vehicle continued to exist despite the 15-minute lapse between the original observation of the traffic offense and the stop. The court explained:

“We make no attempt to articulate a specific time limitation to which officers must adhere in effecting a stop following a traffic violation. Rather, we stress that, consistent with our holdings in similar contexts, stops following transportation violations must be reasonable in light of the circumstances. See, e.g., United States v. Robinson, 741 F.3d 588, 598 (5th Cir. 2014) (emphasizing that “[s]tale information cannot be used to establish probable cause”). To reiterate, we hold only that the elapsed time between an observed violation and any subsequent stop must be reasonable upon consideration of the totality of the circumstances.”

Seal Texas DWI Non Disclosure HB 3016

New Texas Law Makes First-Time DWI Convictions Eligible for Sealing

By | DWI

Expanding Eligibility for Orders of Nondisclosure for First-Time DWI and Other Offenses

Seal Texas DWI Non Disclosure HB 3016Let’s face it, a criminal record is not a good thing when it comes to employment opportunities and other things that require a background search. Even when the criminal offense is non-violent and unintentional, like DWI, it can negatively impact a person’s future. Our Texas lawmakers recognized this stigma and did something about it. This past legislative session (2017), Texas lawmakers from both sides of the aisle proposed legislation to help expand the opportunity to seal criminal convictions with an order of non-disclosure.

What is an Order of Non-Disclosure?

Having your record “sealed” is common verbiage used by laypersons. Under Texas law, this is referred to as non-disclosure. Orders of non-disclosure “seal” a criminal record from the eyes of the general public and allow a person to deny such record in most situations. However, the offense will remain visible to law enforcement, state and federal authorities, and employers in government fields.

Non-Disclosures Prior to House Bill 3016

Before the legislature acted in 2017, the Texas Government Code required a court to issue an order of nondisclosure of criminal records for a person receiving discharge and dismissal of certain nonviolent misdemeanors for which the person was placed on deferred adjudication community supervision (probation). The code also allowed for some “second-chance” considerations under limited circumstances. However, the Texas Government Code did not previously allow for nondisclosure of DWI offenses under any scenario.

What is HB 3016?

Governor Greg Abbott signed HB 3016 on June 15th, 2017. HB 3016 will be effective, retroactively, beginning September 1, 2017. This law amends and expands the Texas Government Code to allow a person convicted of nonviolent misdemeanors, including DWI’s, to petition the court for orders of nondisclosure under certain circumstances and alters some waiting periods.

HB 3016 also allows a person to petition for an order of nondisclosure of criminal history if that person was ineligible to receive an automatic order based solely on a judge’s affirmative finding that issuing such an order was not “in the best interest of justice.” If the offense was a misdemeanor punishable by a fine only an individual may petition for an order of nondisclosure immediately upon the date of completion of their sentence. However, if the misdemeanor was not punishable by fine only, they must wait until the second anniversary of the date of completing the sentence to petition.

See the full text of HB 3016 – Enrolled version.

Orders of Non-Disclosure for DWI Offenses

HB 3016 now allows a person convicted of a first-time Driving While Intoxicated offense with a blood-alcohol concentration (BAC) less than 0.15 to petition for an order of non-disclosure of criminal history related to that offense. However, there are certain criteria that must be met to be eligible to petition for a non-disclosure of a Texas DWI.

A person may petition to have a DWI sealed only if he/she:

  • has never been convicted of or placed on deferred adjudication community supervision (probation) for another offense—this does not include a traffic offense (punishable by fine only);
  • has successfully completed any imposed community supervision and any term of confinement;
  • has paid all fines, costs, and restitution imposed; and
  • the waiting period has elapsed:
    • 2 years if the person successfully completed a period of at least six months of driving restricted to a motor vehicle equipped with an ignition interlock device as a part of the sentence; or
    • 5 years if there was no interlock requirement as part of the sentence.

Additionally, the court will not issue an order of nondisclosure if an attorney representing the state presents evidence sufficient to the court that demonstrates that the underlying offense, for which the order was sought, resulted in a motor vehicle accident involving another person (this includes a passenger of the defendant).

When may you Petition the Court for an Order of Non-Disclosure for a DWI?

The law requires individuals to wait until the second anniversary of the date of completion of their sentence, if the person:

  • complied with all conditions of the sentence for a period not less than six months; and
  • was restricted to operation of a motor vehicle equipped with an interlock device for at least 6 months.

If the court did not impose the above conditions, they are required to wait until the fifth anniversary of the date of completion of their sentence.

NOTE: Having a first-time DWI sealed by an Order of Non-Disclosure will NOT prevent another DWI from being charged as a DWI (Misdemeanor Repetition).

What are the Disqualifying Factors for DWI Sealing?

A person may NOT have their DWI record sealed if:

  • The DWI was a 2nd or 3rd offense;
  • The DWI involved a finding that the Blood-Alcohol Content was greater than 0.15;
  • The DWI involved an accident involving another person;
  • The DWI was within the last 2 years (5 years if there was not interlock requirement)*

*If the waiting period has not expired, but all other conditions are met, the applicant must simply wait until the waiting period is complete.

Which Offenses are Specifically Excluded from Consideration for an Order of Nondisclosure?

Certain misdemeanors are not eligible for consideration for an order of nondisclosure, mostly intoxication related offenses, which include any misdemeanors under the:

  • Alcoholic Beverage Code §106.041 (possession and/or consumption of or selling alcohol to minors); or,
  • Penal Code § 49.04(d) (driving while intoxicated .15 or higher);
  • 49.05 (flying while intoxicated);
  • 49.06 (boating while intoxicated); or,
  • 49.065 (operating an amusement park ride while intoxicated).

Additionally, any conviction under Chapter 71 of the penal code (engaging in organized criminal activity) may not be non-disclosed.

Furthermore, a person will not be granted an order of nondisclosure and is not eligible to petition the court if the person has previously been convicted or placed on deferred adjudication probation for:

  • an offense requiring sex offender registration;
  • murder;
  • capital murder;
  • aggravated kidnapping;
  • trafficking/continuous trafficking of persons;
  • abandoning or endangering a child;
  • violation/repeated violation of certain court orders or conditions of bond in a family violence, sexual assault or abuse, stalking, or trafficking case;
  • stalking; or
  • any other offense involving family violence.

Results of HB 3016 and the New Non-Disclosure Law

HB 3016 makes it easier for persons with certain low-level nonviolent offenses, particularly DWI’s, to obtain employment and become productive members of society. However, subsequent offenders will remain accountable because law enforcement may still use the “sealed” conviction against subsequent offenses and certain entities will still be able to view the offense.

Contact our Criminal Defense Team Today to See if You Qualify to Have Your Record Sealed Under this Law

Contact Barnett Howard & Williams today and let our team help you determine whether you may be eligible for a non-disclosure under this law when it takes effect in September 2017. We are happy to provide a free consultation to walk you through the steps for sealing your record.  Call our attorney today at (817) 993-9249.