Refuse Field Sobriety Test Texas

May I Legally Refuse Field Sobriety Tests if Stopped for DWI?

By | DWI

Yes. You may legally refuse field sobriety tests in Texas. This article explains why you should consider refusing.

Standardized Field Sobriety Tests Can Be the Best Evidence for the State in a DWI Trial

Field Sobriety Test Fort WorthWhen a driver is stopped in Texas and the officer suspects that the driver may be intoxicated, the officer will typically run through a standard DWI roadside investigation. This investigation begins by simply observing the driver (bloodshot eyes, odor of alcohol, slurred speech) and asking some questions:

  • “Where are you coming from this evening?”
  • “Have you had anything to drink tonight?”
  • “How many is a couple?”

If the officer sees enough to warrant a further investigation, they will ask the driver to step out of the car.

“Let’s Make Sure that You’re Okay to Drive Tonight.”

Once the driver steps out of the car, the officer’s body worn camera and dash camera are recording so that the footage can capture the interaction (to be used later at trial if needed). The officer will then explain that they are going to do some tests just to “make sure that you’re okay to drive.” Note: The officer WILL NOT NORMALLY ask permission to conduct the
standardized field sobriety tasks.  He will jump right in and hope that you just go along with it.
There are 3 standard tests that are explained in more detail on our DWI page.

The Standardized Field Sobriety Tests are Not Designed for You to Pass

The 3 standard tests are (1) the HGN test (Horizontal Gaze Nystagmus), which is the “eyes test,” (2) the Walk and Turn test (also known as the Walk the Line test), and (3) the One Leg Stand test. I don’t have enough time to go into the many problems with the tests, but to list a few:

  • The Eye Test (HGN) – this test requires the officer to use specific precision in the field which results in mistakes often being made. Further, even with updated body worn camera technology, the video rarely shows what the officer claims to observe in the eyes. So we are usually left with officer testimony alone;
  • The Walk and Turn test – this test is difficult (even for sober people) because it requires the person to take challenging heel to toe steps on an imaginary line in all conditions and officers never take into account the person’s stress level, the weather conditions, footwear, fatigue from a long day, etc.; and
  • The One Leg Stand – this test is also difficult. It requires you to balance on one foot for 30 FULL seconds. TAKE NOTE – if the person puts their foot down at 27 seconds it is a strike against them!

Throughout the years, the tests have been debunked and challenged by experts as unreliable, but the courts are still allowing them as proof of intoxication (they are claimed to be used as evidence of the loss of mental or physical faculties).  In short, these tests exist for the officer to build a case against you in court and we feel ultimately set you up to fail. So what benefit is there for a driver who is suspected of DWI to take the tests if they don’t have to?

You DO NOT Have to Submit to Standardized Field Sobriety Tests in Texas

Even though the officer might act as if you must take the tests, you don't. If he asks you to exit the vehicle then you must get out of the car. But as soon as he tries to start the HGN (eye test) on you, you can (and probably should) politely refuse to take the test. Take note of what I said…Politely Refuse. Do not be a jerk about it and go into a diatribe about how you read this
blog and you know these tests are no good and that you refuse to do them. Remember this is all being captured on audio and video; audio and video that will be exhibit #1 at a trial if it goes that far. Simply inform the officer that you do not wish to participate in the standardized field sobriety tests.

Can I Still be Arrested if I Refuse to Perform the Field Sobriety Tests?

Yes you can (and probably will) be arrested if you refuse to perform the FSTs. If the officer already felt like he had enough evidence to administer the tests, then he will probably go ahead and arrest you for DWI if you refuse to take them. But hey, you were probably going to get arrested anyway. Now, however, there will be less evidence against you.  You have an absolute right not to give evidence against yourself.  This constitutional right applies equally in the DWI context.

Should I Take the Tests if I Haven’t Had that Much to Drink?

You are an adult, so it is really up to you, but our advice (from over 10 years of handling DWI cases) is NO. You should not perform the standardized field sobriety tests. Your DWI case becomes tougher to defend if you look intoxicated on the video. Even if you haven’t had that much to drink, there are many reasons why you might appear intoxicated on the video:

  • You are extremely nervous and have a high stress level from being pulled out of your car in the middle of the night by a police officer
  • Your footwear (high heels, flip flops, etc)
  • The wind is blowing hard
  • It is cold outside and you are shivering
  • You have an old injury that causes you to limp or not walk “normally”
  • You have bad balance (even on a good day)

Lastly, these tests are extremely technical. The instructions are long and tedious and can be very confusing for someone who has never attempted these tests before. Officers also like to compound this issue by providing you the instructions very aggressively and rapidly. Your failure to comply perfectly with these instructions can be used against you in court.

Next Time, Please Take an Uber

We hope you will listen to our advice regarding DWI field sobriety tests. Better yet, we hope that you’ll just pay the $40 for an Uber or taxi from the bar or restaurant and avoid this altogether. But if you didn’t take our advice and you didn’t call and Uber, call us and we’ll be happy to be your advocates.

*This article did not discuss whether you may legally refuse a Breath Test or a Blood Test. We’ve written on that many times and the answer is YES. You may refuse breath and blood tests UNLESS the officer has a warrant for your blood. If they have a warrant, you may not refuse.

Scholarship Winners BHW

2022 BHW Scholarship Winners

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2022 Scholarship Awards

BHW Scholarship Winners

This was the 7th year for our law firm to offer scholarships. In honor of the sacrifices of our military veterans, BHW awards 2 scholarships that are connected 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.

2022 Winner – Military Veteran Law Student Scholarship

The winner of the 2022 Military Veteran Law Student Scholarship is:

CHRISTOPHER KOLKOWSKI

Christopher Kolkowski is an Air Force veteran and C130J pilot. Mr. Kolkowski currently attends University of Arkansas – Little Rock Bowen School of Law. Congratulations CPT Kolkowski. Best wishes as you continue toward your law degree.

2022 Winner – Military Dependent Scholarship

The winner of the 2022 Military Dependent Undergraduate Scholarship is:

MAGGIE EVANS

Maggie Evans is a US Navy dependent whose father served in the US Navy. Ms. Evans currently attends the University of Texas – San Antonio and is pursuing a Masters degree in Clinical Mental Health Counseling, a field that is dear to her heart (and those of the military community). Congratulations Maggie Evans. 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

Fireworks Laws in Texas2

Fireworks Laws in Texas | Could a Sparkler Really Cost You $2,000?

By | Criminal Defense

Do Not Lose Your Liberty on Independence Day

Fireworks Laws in TexasIndependence Day is right around the corner. You will probably start seeing the notices spread across social media from local police departments, warning that setting off fireworks (including sparklers) is illegal inside of city limits. We know that you’re probably going to do it anyway, but we wanted to let you know what Texas law provides regarding fireworks on the 4th of July.

Texas Fireworks Law | Are Sparklers Illegal Inside of City Limits?

While state law in Texas permits possessing and using fireworks, it’s important to note that where and when a person can possess them is still highly regulated. There are State laws that limit the use and display of fireworks but use is predominantly regulated by way of city ordinances.

Specifically, under state law, a person may not:

  1. Explode or ignite fireworks within 600 feet of any church, a hospital other than a veterinary hospital, an asylum, a licensed child care center, or a public or private primary or secondary school or institution of higher education unless the person receives authorization in writing from that organization;
  2. Sell at retail, explode, or ignite fireworks within 100 feet of a place where flammable liquids or flammable compressed gasses are stored and dispensed;
  3. Explode or ignite fireworks within 100 feet of a place where fireworks are stored or sold;
  4. Ignite or discharge fireworks in or from a motor vehicle;
  5. Place ignited fireworks in, or throw ignited fireworks at, a motor vehicle;
  6. Conduct a public fireworks display that includes Fireworks 1.3G unless the person is a licensed pyrotechnic operator;
  7. Conduct a proximate display of fireworks that includes Fireworks 1.3G or Fireworks 1.4G as defined in NFPA 1126 Standards for the Use of Pyrotechnics Before a Proximate Audience unless the person is a licensed pyrotechnic special effects operator and has the approval of the local fire prevention officer; or
  8. Sell, store, manufacture, distribute, or display fireworks except as provided by this chapter or rules adopted by the commissioner under this chapter.

Texas Occupations Code, Subchapter F, Sec. 2154.251

These violations are Class C Misdemeanors, which can be punishable by a fine up to $500.

Fireworks licensing violations are Class B Misdemeanors which can result in a jail term up to 180 days and a fine not to exceed $2,000.

Fireworks City Ordinances | Local Fireworks Rules in Fort Worth, Keller, and Southlake

In addition to State law, most cities in Texas regulate the use and display of fireworks by way of specific city ordinances. For example, Fort Worth, Texas has enacted an ordinance making the sale, discharge or possession of fireworks within the incorporated city limits a Class C misdemeanor punishable by up to a $2,000.00 fine. Similar ordinances exist in Keller and Southlake, and most other Texas cities.

Before your celebrations, it’s always best to review the above regulations under the Texas Occupations Code and check your local city ordinances online to ensure that you’re legally possessing, using and displaying fireworks.

Final Four DWI Texas

DWI Madness | “The Final Four” Reasons Texans are Stopped for DWI

By | DWI

Final Four DWI TexasMarch Madness is here again. With the Final Four approaching, we built a bracket of our own. In this article, DWI attorney Jason Howard discusses the top four reasons people are stopped or detained for a DWI investigation in Texas. We’ve compiled and power-seeded our list based on the numerous Tarrant County DWI cases we handle every year. Before we get to the “Final Four,” here are some honorable mentions that didn’t quite make the tournament list:

  • Sleeping in a running vehicle
  • Driving the wrong way on a one-way street
  • Rolling through a stop sign
  • Expired registration as seen by police scanner
  • No license plate light

Of course, there are many more reasons that folks are stopped and investigated for DWI, but below are the top four reasons that we see the most.

The Top Four Reasons Drivers Are Stopped for a DWI Investigation in Texas

#4 – Auto Accident

By auto accident, we mean everything from a head-on collision to a run-in with a mailbox. More serious accidents will usually generate the presence of officers on scene within a matter of minutes. Officers are usually looking to rule out the possibility of someone being intoxicated as soon as they arrive on scene. Minor accidents where there are no injuries might elicit a call to 911 (when there would otherwise just be a swap of insurance) if the other party involved suspects a DWI. Easy to see that if you’ve consumed alcohol and are involved in an accident, there is a high probability of a DWI investigation.

#3 – Swerving or Weaving

Please note – there is a difference between the two. Swerving is the more blatant failure to maintain a single lane by driving the vehicle all across the road. Weaving, on the other hand, is usually more subtle and sometimes observed within the lane. Regardless, if it’s late at night and a police officer is behind you and observes either of these driving behaviors, the red and blues are probably going to come on and the driver asked to step out of the vehicle for field sobriety testing.

#2 – Lane Change Problems

The #3 and #4 seeds were probably the top guesses, right? Surprisingly, we see more of numbers 1 and 2 than any other. And they probably weren’t the ones you guessed. I’ve grouped lane change issues because they can vary from the failure to signal a lane change or turn to the failure to make a proper turn at intersection (aka the “wide right” or “wide left” turn.) If you monitor your daily driving (when you’ve consumed no alcohol,) you’ll probably see that you commit many of these types of traffic infractions constantly. You’ll certainly see other people commit them. So, how does that translate to a police officer’s suspicion of drinking and driving? If it’s late at night on a Friday or Saturday, most patrol officers are quick to pull people over for any traffic violation just to check them out and make sure they’re not DWI.

That brings us to our number one reason people are stopped prior to a DWI arrest…

#1 – Speeding

We’re not talking 100mph in a 30mph zone, although we have seen some crazy speeds. No, we’re talking general, everyday speeding; 5 or 10 miles an hour over the speed limit. Nighttime patrol officers love to use their speed detection devices to initiate stops to find DWIs. That’s right! Patrol officers aren’t just looking for obvious impaired driving clues. It’s clear from our experience in handling DWI cases in Tarrant County that most officers are suspicious of anyone out late at night (especially on the weekends.) They know they only need a legal reason to stop someone at any given time. And once they establish their legal reason (even if it’s just speeding,) they then get to proceed with the “where are you coming from, where are you going, have you had anything to drink?” line of questioning. Once they get an admission of “yeah, I had a couple” or smell even the faintest odor of alcohol from the vehicle, they then get the driver out of the vehicle and begin the field sobriety tests. And once they start with the field sobriety tests, the possibility of being arrested goes up astronomically – even if you’re not intoxicated!

If we were to play out the DWI Final Four tournament, Speeding would be your Texas State Champion.

What Should You Do If You Are Suspected of Driving While Intoxicated?

We’ve written on this topic several times, including:
DWI Information Page
May I Legally Refuse a Field Sobriety Test?

If you have been arrested for DWI in Tarrant County after being stopped for one of these four reasons (or any other reason), contact our Tarrant County DWI attorneys for a free case evaluation.

Swatting False Report of Crime in Texas

New Texas Offense: Swatting (Making a False Emergency Report)

By | False Report, Legislative Update

Swatting False Report of Crime in TexasTexas legislators enacted several new criminal laws in the 2021 legislative session. Below, we highlight one of them – Swatting. Being from Texas, I initially thought this might have something to do with mosquitoes, but, as it turns out, Swatting is the act of falsely reporting a crime or emergency to law enforcement or emergency personnel. This new offense is a Class A misdemeanor unless the prosecutor can show that you’ve been convicted of this same offense in the past.

 

NEW OFFENSE: Article 42.0601, Texas Penal Code – Swatting (False Report to Induce Emergency Response)
Senate Bill 1056: Summary of the legislation

Text of the new law:
     Sec. 42.0601. FALSE REPORT TO INDUCE EMERGENCY RESPONSE.

(a) A person commits an offense if:

(1) the person makes a report of a criminal offense or an emergency or causes a report of a criminal offense or an
emergency to be made to a peace officer, law enforcement agency, 9-1-1 service as defined by Section 771.001, Health and Safety Code, official or volunteer agency organized to deal with emergencies, or any other governmental employee or contractor who is authorized to receive reports of a criminal offense or emergency;
(2) the person knows that the report is false;
(3) the report causes an emergency response from a law enforcement agency or other emergency responder; and
(4) in making the report or causing the report to be made, the person is reckless with regard to whether the emergency response by a law enforcement agency or other emergency responder may directly result in bodily injury to another person.

PENALTY: A violation of the Swatting statute is a Class A misdemeanor, which carries a range of punishment of 0-365 days in jail and a fine up to $4,000. The offense is enhanced to a State Jail Felony if the actor has been convicted of the same offense twice before. The offense is enhanced to the 3rd Degree Felony if a person is killed or seriously injured as a result of the false emergency call and response.

EFFECTIVE DATE: The Swatting law went into effect on 9/1/21.

SPONSORS: Senate Bill 1056 was a bipartisan bill sponsored by Senator Joan Huffman (R) and Representative Eugene Wu (D). It was approved by both the Senate and the House in unanimous votes.

Christmastime Arrests Texas

Top 5 Reasons for Arrests During the Christmas Holiday Season

By | Criminal Defense

Christmastime Arrests TexasWhen you think about the Christmas season, you probably think about family time, presents, good food, and celebration. We think about those things too, but as criminal defense attorneys, we also think about the reasons that some of our clients get arrested during the holiday season. For this article, we took a look at the last 6 years of holiday season arrests (for clients that we represented) and compiled an (anecdotal) list of the top 5 reasons that folks get arrested during the Christmas/New Year’s season. Our goal is that this list will serve as a warning, so that your holiday season can be filled with the good stuff, rather than jail, bail, and calls to our office. Here goes:

5. Shoplifting

Many retailers slash their prices and offer steep discounts in the weeks leading up to Christmas and even bigger discounts after Christmas, but we have yet to see any retailer offer the “five finger discount” for their merchandise. Regardless, we see plenty of shoplifting cases during the Christmas season, making it our #5 reasons that people get arrested during Christmas. Depending on the regular price value of the item (not the discounted price), shoplifting theft charges can range from misdemeanors to felonies. Learn more about Theft law in Texas here.

4. Package Theft

In a similar vein to shoplifting, our #4 reason for holiday arrests is package theft. Many shoppers choose the convenience of online shopping and have their Christmas purchases delivered right to their front door. Some people see this as an easy target, following behind UPS or FedEx trucks to steal those would-be Christmas gifts from the front porch. However, with the increase in doorbell cameras, it is getting easier to catch the porch pirates in the act. Further, some law enforcement agencies have begun using dummy packages to bait thieves into getting caught. Package theft can range from a misdemeanor to a felony depending on what unknown treasure lay inside the brown box.

3. Airport Contraband (Guns and Drugs)

Going to visit grandma can require air travel for many families. This means that thousands more people than usual flood through DFW Airport between Thanksgiving and New Year’s. It matters not from where these travelers hail. From Maryland to Oregon to France, if a person is arrested at DFW Airport, their case will be filed in Tarrant County, Texas and they will have to travel back to DFW to attend court. During the holidays, we see a surge in airport arrests when people bring items into the airport that are not allowed. These mostly consist of:

Even if the state from which a traveler is coming has legalized marijuana and the state to which they are traveling has legalized marijuana, if they are caught possessing marijuana in the airport, they will be arrested and charged. The combination of airport gun arrests and airport drug arrests make these types of cases our #3 reason for holiday arrests.

2. Assault Family Violence

In the movie Christmas Vacation, Clark Griswold showed an enormous amount of restraint when his extended family pushed him to the limit (especially Cousin Eddie), but not everyone is blessed with such a cool head. Christmas time brings added stressors into the family environment that can sometimes lead to verbal or physical altercations between family members, so much so, that these arrests rank at #2 in our book. Depending on the nature of the assault, a domestic violence arrest can be charged as a misdemeanor or a felony. Learn more about Family Violence under Texas law.

1. Driving While Intoxicated

With all of the Christmas and New Year’s parties and the increase in No Refusal Weekends, it is not hard to guess that DWI arrests are #1 on our list. Driving While Intoxicated in Texas can range from a misdemeanor (if it is a first or second offense) to a felony (if there is a child in the car or if the person arrested has been convicted of DWI twice in the past). Our advice is to plan ahead and do not even take your car to a Christmas party when you plan to drink. Catch a ride from a friend or take an Uber or Lyft. That would be a lot cheaper than hiring an attorney and a lot less hassle too. Learn more about Texas DWI law here.

We Hope You Never Need Us, But We’re Here if Your Do.

We wish you a very merry Christmas and a happy New Year. As always, we hope you never need us to represent you or one of your loved ones for a criminal offense. This is even more true during the Christmas season. Hopefully this list will help you avoid trouble that looms during the holiday season. If you do happen to need us, we are only a phone call away at (817) 993-9249.

New Criminal Laws 2021

Texas Legislature Update: New Criminal Laws 2021

By | Legislative Update

New Criminal Laws 2021The 2021 Texas legislative session has now closed and there were several updates to our criminal statutes. Below are some of the more notable changes or additions to Texas criminal laws that took effect on September 1, 2021:

Constitutional Carry – HB 1927

All Texans over the age of 21 are now able to carry a handgun in public without a license or training as long as they are not prohibited from possessing a gun by state or federal law. In addition, the carrying a firearm while intoxicated is now a Class A misdemeanor, punishable by up to a year in jail and a maximum $4,000 fine, and the carrying a firearm in a vehicle by a gang member is now a third-degree felony punishable by two to 10 years in prison and a maximum $10,000 fine. HB 1927 also allows a peace officer to disarm a citizen at any time if they believe it is necessary to protect the individual, the officer, or another person. The officer, however, must return the handgun before leaving the scene if the officer determines the person was not a threat and didn’t commit a violation. Finally, HB 1927 allows for the expungement of records for those previously convicted of Unlawful Carrying a Weapon before September 1, 2021.

Obstructing Emergency Vehicles – HB 9

HB 9 makes it a state jail felony to knowingly block an emergency vehicle with its lights and sirens on or to obstruct access to a hospital or health care facility. This offense is punishable by six months to two years behind bars and a maximum $10,000 fine. Individuals convicted of this offense are required to spend at least 10 days in jail, even if they are sentenced to probation.

False Reporting to Induce Emergency Response – SB 1056

SB 1056 makes it a Class A misdemeanor, punishable by up to a year in jail and a maximum $4,000 fine, to falsely report a crime or an emergency to elicit an emergency response from law enforcement or other emergency responders. The charge becomes a state jail felony, punishable by six months to two years in state jail, if the defendant has been previously convicted twice of the offense and a third-degree felony, punishable by two or ten years in prison, if a person is seriously injured or killed as a result of the emergency response.

Enhancement for Reckless Driving Exhibition – SB 1495

SB 1495 heightens the penalty for obstructing a highway or passageway from a Class B misdemeanor to a Class A misdemeanor, punishable by up to a year in jail and a maximum $4,000 fine, for an individual who engages in a reckless driving exhibition. SB 1495 enhances the penalty to a state jail felony for a person who has been previously convicted of this offense, a person who operates a vehicle while intoxicated, or who causes someone to suffer bodily injury.

Harassment Extension to Social Media Posts – SB 530

SB 530 makes it a Class B misdemeanor, punishable by up to 180 days in jail and a maximum $2,000 fine, to harass another person by publishing repeated electronic communications on a website with the intent to harass, annoy, alarm, torment, or embarrass that person. The penalty, however, can be increased to a Class A misdemeanor, punishable by up to a year in jail and a maximum $4,000 fine, if the actor has been previously convicted of the offense or it if involved a child under age 18 with the intent to cause the child serious bodily injury or to commit suicide.

Silencer Legalization – HB 957

HB 957 removes firearm silencers from the list of weapons that are prohibited in Texas. In addition, firearms suppressors that are manufactured and remain in Texas are not subject to federal law or regulation.
Enhanced Punishment for Offenses against Public Servants – HB 624
HB 624 increases the penalty by one level for people who commit an offense against someone whom they know is a public servant or against a member of the public servant’s household or family. The increased punishments apply to arson, criminal mischief, criminal trespass, breach of computer security, harassment, stalking, or fraudulent use of possession of identifying information.

Enhanced Punishment for Offenses against Public Servants – HB 624

HB 624 increases the penalty by one level for people who commit an offense against someone whom they know is a public servant or against a member of the public servant’s household or family. The increased punishments apply to arson, criminal mischief, criminal trespass, breach of computer security, harassment, stalking, or fraudulent use of possession of identifying information.

Scholarship Winners BHW

2021 BHW Scholarship Winners | Veteran Law Student & Military Dependent

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2021 Scholarship Awards

BHW Scholarship WinnersThis was the 6th year for our law firm to offer scholarships. In honor of the sacrifices of our military veterans, we decided to that the scholarships should be connected 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.

2021 Winner – Military Veteran Law Student Scholarship

The winner of the 2021 Military Veteran Law Student Scholarship is:

SAMANTHA DOWNEY

Samantha Downey is an Army veteran that served for 6 years as a Combat Medic. Ms. Downey currently attends Notre Dame Law School. Congratulations Samantha Downey. Best wishes as you continue toward your law degree.

2021 Winner – Military Dependent Scholarship

The winner of the 2021 Military Dependent Undergraduate Scholarship is:

JEREMIAH BROOKS

Jeremiah Brooks is a US Marine Corps dependent whose father served in both the Marine Corps and Florida Army National Guard. Mr. Brooks graduated from Canyon Lake High School in 2021 and will be pursuing a career in Cyber Security. Congratulations Jeremiah Brooks. 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

Texas Expunction Update

Misdemeanor Offenses in Texas Now Eligible for Expunction on an Individual Basis

By | Expunction

Texas Expunction UpdateIn January of this year, the Supreme Court of Texas heard arguments for Ex parte R.P.G.P. in which it declared that an arrest involving multiple offenses is divisible for expungement purposes under Article 55.01 of the Texas Code of Criminal Procedure. Specifically, it answered a question left open by a previous case, finding that misdemeanor offenses are eligible for expunction on an individual basis.

What is an Expunction of Criminal Records ?

When a criminal record is expunged, that means that the record of is destroyed or sealed (for juvenile records). In an expunction order the court orders the various agencies that maintain records to treat a criminal arrest as though it never happened. People generally have their records expunged so that it does not show up on a routine background check, as an expungement removes any record of the arrest or case from public record.

How Do You Go About Getting an Expungement in Texas?

Under Texas law, there are a number of things that make a record eligible for expunction. If you qualify for expunction, there is a process you must go through, beginning with filing what is called a Petition for Expunction with the district court requesting that it grant an Order for Expunction. While it is possible to prepare this on your own, the somewhat complicated process is best handled by an attorney. The prudent course is to consult a lawyer in order to have the best chance at successfully expunging a record. You only get one shot and if your petition is not granted you don’t get to try again, so it is best to get it right from the start.

After completing the petition, it must be filed with the proper court. You must file the petition for expunction in the district court of the county where the arrest occurred. Following the filing, the court schedules a hearing and notifies the record-keeping agencies that you included in your petition. Once everyone has been notified, the court will hold a hearing and allow those notified the chance to object to the expunction.

If you meet all the requirements, the court will grant the expunction and you will need to give an Order for Expunction to the court for the judge’s signature. Important to know is that the court will probably expect you to have this order ready at the hearing for the judge to sign then and there. Once the order is signed, it has to be submitted to the respondent agencies that you listed in the petition. Those records will then be either deleted or returned to the court clerk for destruction.

A Change in Texas Expunction Law: Arrests for Multiple Offense Can Now be Divided for Expungement?

Prior to a recent court decision, Texans could not expunge an arrest unless ALL alleged offenses qualified for expunction under the law. If any of the alleged offenses in the arrest report were not eligible for expunction, then NONE of the offenses were eligible. A partial expunction was not allowed.

However, State v. T.S.N., was a case which a single arrest involved several unrelated offenses and the court held that partial expunction of the arrest record was required and could be achieved through redaction, leaving the portions of the arrest record regarding an unrelated offense not eligible for expunction. While this case left open the question regarding misdemeanor offenses and their eligibility for expunction on an individual basis, it set the stage for R.P.G.P.’s case.

Thanks to Ex Parte R.P.G.P., if you are arrested for multiple offenses, those offenses are considered divisible—you can expunge one even if the other would not qualify. Ex Parte R.P.G.P. is a great illustration of what exactly this means. In that case, R.P.G.P. was arrested for a DWI and a search of the car revealed marijuana, so he was also charged with possession. The DWI charge was dismissed and R.P.G.P. pled no contest to the possession charge, which was ultimately dismissed after serving nine months of deferred adjudication probation. After both charges were dismissed, R.P.G.P. filed for expunction of the DWI arrest, but the State argued that no part of the arrest record could be expunged because the possession charge was ineligible for expunction. However, the court ultimately held that the DWI portion of the record could be expunged, even though the possession portion would remain on the record.

What Does This Change in the Expunction Law Mean for Texans?

What this means going forward for Texans is that if your arrest record reflects multiple misdemeanor offenses, some of which would be eligible for expunction on their own and some that are not, the ones that are eligible can be expunged, leaving the other portions on the record. This is a shift from the all-or-nothing approach previously adopted by the state. Rather than treating each arrest for various offenses as a collective, we can look at each individual charge and proceed from there. Hopefully, this line of thinking will be expanded to cases involving felony arrests as well, but time will tell.

Butt-Dial Statement Texas Templeton

Can the Statements You Make During a Butt-Dial be Used Against You?

By | 5th Amendment

Butt-Dial Statement Texas TempletonThe short answer is Yes. According to both local and federal courts, what you say during a butt-dial phone call can potentially be used against you in court. In Texas, a hearsay exception makes those overheard statements admissible. In the federal system, these calls are viewed as having no reasonable expectation of privacy—since you did not take simple precautions to avoid this kind of situation, you cannot expect someone on the receiving end of the call not to repeat what they heard.

Butt-Dials in Texas: Can Words Overheard During an Unintended Phone Call be Used Against Me?

Under Texas law, statements made during an accidental butt-dial are likely admissible and the speaker likely has no reasonable expectation of privacy in those statements. Typically, repeating something in court that you heard someone else say outside of court is not allowed—it is referred to as hearsay and is considered inadmissible in a court of law. But, as with everything, there are hearsay exceptions that, in certain circumstances, allow someone to testify about something they heard someone else say. So, it should not be too surprising that a recent case found that butt-dials fall into one of the many hearsay exceptions.

Templeton v. State involved a felony assault family violence case in which the victim’s father received a butt-dial call from the victim and overheard defendant Templeton make incriminating statements about the assault, which the father then repeated in court. The Templeton court likened butt-dial statements to the requirements of Texas Rules of Evidence 801(e)(2)(A), commonly known as the admission of a party-opponent. Under this rule, a statement is not considered hearsay if it is a statement made by the person whom it is then offered against. In Templeton’s case, that meant that the statements he made on the butt-dial, which were overheard and then repeated by the victim’s father, could be used against him in court where he was the defendant. These statements do not have to be against the interests of the speaker when they are made in order for them to be admissible, rather, the requirement is that the statements be offered as evidence against the speaker/defendant.

Templeton sets the bar rather low in terms of the work it takes to get these kinds of phone calls in. Essentially, any Texas defendant who accidentally butt-dials someone faces the possibility that anything they say—whether they know someone is listening or not, or whether it is against their interest or not—can be repeated in court so long as it is used as evidence against them. The phrase “be careful what you say” could not ring more true. While a majority of butt-dials result in the overhearing of harmless conversations (your comments about who you saw at Trader Joe’s and the gossip you exchange with your friends are not likely to be subjects of court cases), it is important to know that anything you say on those calls has the potential to be repeated in court.

Butt Dials in the Federal System: Do I Have a Reasonable Expectation of Privacy?

Somewhat unsurprisingly, the sentiment that what someone said during a butt-dial can be used against them extends beyond just Texas and into the Federal system as well. In another recent case, Huff v. Spaw, the Sixth Circuit Appeals Court addressed butt-dials in two contexts: the traditional context in which a call is accidentally made and someone on the other end overhears and perhaps even documents or records the calls, and instances in which a butt-dial is made and the listener records the conversation the caller has with a third-party while in a hotel room.

The judge in Huff determined that in the first instance, there is no privacy claim. Essentially, according to the federal courts, it is the duty of every cell phone owner to make sure that their phones are secure. The court points out the commonality of cell phones and their use. There is no expectation of privacy (and therefore no claim) when someone fails to take simple measures to secure their phone and accidentally shares their activities or statements while using an everyday cell phone. As far as precautions go, the biggest one is to lock your phone. From there, there are a number of apps available to help prevent butt-dialing.

As to the second issue, the judge determined that there was a reasonable expectation of privacy, so that part of the case was remanded to the lower court for reconsideration. The key difference between these two issues was the fact that Bertha Huff, with whom James Huff spoke to in her hotel room. Bertha’s part of the conversation, in the judge’s opinion, was protected by a reasonable expectation of privacy because she did not make the butt-dial—as far as she was concerned, all she was doing was speaking to her husband in the comfort of her hotel room.

What Can You do to Protect Your Privacy?

No matter what type of phone you have, the first line of defense in preventing butt-dials and protecting your privacy is to lock your phone. From there, there are a number of other settings you can change that make butt-dialing less likely.

For iPhone users, adding a passcode (or touch/face I.D.) provides an additional layer of protection for users. If you are prone to butt-dialing, you can take it a step further, allowing your phone to auto-lock quickly (Settings –> Display & Brightness –> Auto-Lock). For iPhone users with models that still have the home button, it might be smart to also disable tap-to-wake (Settings –> Accessibility –> Touch –> Tap to Wake).

There are precautions for Android users too! Begin by setting a passcode. To turn off the tap to wake feature on these phones, go to Settings –> Display –> Lock Screen Display –> Double-Tap to Check Phone. To change the time it takes for these phones to auto-lock, go to Settings –> Security –> gear lock icon next to Screen Lock.

If you really want to go above and beyond, there are some apps available for certain phone users to download. If you take all these precautions and still end up in a situation where what you said on a butt-dial is being used against you, consult an attorney to discuss the best plan of action.