Criminal Law
What to do if you are arrested
You still have rights if you are arrested. But what are those rights, and what do they entail?
What rights do you have when you are questioned by the police?
1. You have the right to remain silent.
2. If you choose to speak, anything you say can be used against you in court.
3. If you decide to answer any questions, you may stop at any time and the law requires all questioning to cease.
4. You have a right to consult with your attorney before answering any questions. You have the right to have your attorney present if you decide to answer any questions, and if you cannot afford an attorney, one will be provided for you or appointed for you by the court without cost to you before any further questions may be asked.
What are your rights after you have been arrested?
You have a right to know the crime or crimes with which you have been charged.
You have the right to communicate by telephone with your attorney or family or friend or bondsman as soon after you are brought to the police station as practical. The police have a right to complete their booking procedures before you are allowed to use the telephone.
May a law enforcement officer detain you without arresting you?
If there is a reasonable suspicion that you may be involved in criminal activity, a police officer may require you to identify yourself and explain your presence at a particular time.
If the officer has reasonable grounds to believe that you are armed or may be dangerous, he or she may conduct a limited pat down of your outer garments for the purpose of detecting weapons.
The officer may ask you questions pursuant to an investigation. You have a constitutional right not to answer them, but if you refuse to identify yourself, the officer may have grounds to make an arrest.
At the conclusion of this temporary detention, the officer must either arrest you or let you go.
When may you be arrested with a warrant?
A police officer may arrest you at any time if there is a warrant for your arrest or if they have knowledge that a warrant for your arrest has been issued.
A police officer must show the warrant to you as soon as possible and inform you of the offense charged.
When may you be arrested without a warrant?
A police officer may make an arrest without a warrant only under certain limited circumstances in Texas. An officer may arrest anyone who commits an offense in the officer's presence or within the officer's view. An officer may arrest a person if informed by a credible person that a felony has been committed and that the offender is about to escape and there is no time to get a warrant. Examples of felonies include murder, rape, robbery, burglary, and sale of narcotics.
When may you be searched?
If you are arrested in your home, officers may conduct a limited search of the immediate area where you are arrested without a search warrant. They may also check the rest of the house for any accomplices. They may search any contraband, stolen property, or evidence of a crime discovered in plain view in any portion of the house where the officers have a right to be.
When you are arrested while driving your automobile, the officers may make a limited search of your car at that time for the purpose of discovering weapons that might be used against them. They may not make a general search of your automobile unless there is independent
probable cause that the vehicle is carrying evidence of crime or contraband. If a search is requested by an officer, you are not required co give consent.
What procedures are usually followed when you are arrested?
I. The officer will take you to a police station, jail, or other detention facility.
2. Upon arrival at the jail or shortly thereafter, you will be afforded the opportunity to contact an attorney.
3. You will be advised generally as to the charges against you.
4. You may be required to:
• participate in a lineup;
• prepare a sample of your handwriting;
• speak phrases associated with the crime with which you are charged,
• wear certain clothes; or
• give a sample of your hair, blood, etc.
You should request to have your attorney present during any of the procedures below.
5. You may also be required to be fingerprinted and photographed.
6. You must be taken before a magistrate (a court official who may exercise some functions of a judge) within a short time of your arrest. The magistrate will inform you of the charge filed against you and your rights.
Assault and Battery
Assault refers to the threat or intent to inflict physical harm on a person. Assault can be simple assault where the injuries are minor. In serious injuries, including those sustained from a deadly weapon, are considered aggravated assault.
Domestic/Family Violence
Domestic or family violence involves a spouse, child, girlfriend or boyfriend. Violence against women and child abuse are the most common reoccurring forms of family violence. Domestic violence can take place in the following ways:
1. Physical force- Hitting, slapping, kicking, biting, choking and assault with a weapon
2. Sexual abuse & exploitation- rape, sodomy and prostitution among other things, where physical acts of a sexual nature are coerced.
Drug Crimes
Drug offenses constitute the illegal cultivation, possession, distribution, and trafficking of narcotics and chemicals along with the conspiracy to commit drug-related crimes. Drug charges vary in range from possession of small amounts of drugs to manufacturing and distributing drugs.
Driving While Intoxicated - DWI (DUI)
Driving while under the influence (DUI) or driving while intoxicated (DWI) in a public place (such as a highway, street, or parking lot) is an offense that has serious risks and consequences. After consuming a certain amount of alcohol, a person’s ability to drive becomes impaired. It is illegal to operate a motor vehicle if a person’s Blood Alcohol Concentration (BAC) reaches or exceeds .08 percent. In the state of Texas, a person may be considered intoxicated despite BAC, if they have consumed any amount of alcohol or drugs. This means that there are two ways in which intoxication is established:
1. If a person does not have normal use of their physical and/or mental faculties due to the introduction of alcohol, drugs or controlled substances in their system. This includes prescription medicines that may impair driving.
2. If a person’s breath alcohol level is or exceeds 0.08.
The state of Texas also has a zero tolerance policy for drivers under the age of 21. This means that it is illegal for anyone under the age of 21 to drive after consuming alcohol or drugs.
In the event that a person is stopped for drinking while driving, they are required to show their driver’s license and insurance. In addition to being asked where they are going or coming from, a person may also be asked if they have consumed alcohol and if so, in what quantities. An officer may then ask the driver in question to take a field sobriety test. There are three standard field sobriety tests:
1. the horizontal gaze nystagmus test (called HGN) where the officer is looking for an involuntary jerking of the eyeball. This results of this test are purported to reveal whether the person is under the influence.
2. the walk and turn test, where the person is asked to walk a straight line heel to toe for nine steps in two directions, and
3. the one leg stand test where the person is asked to stand on one leg for thirty seconds.
Some officers will request the person submit to a preliminary breath test at the scene (PBT) to determine alcohol concentration. Officers make an arrest decision based on these tests as well as the driving facts and facts learned from interviewing the detained person. If the person is arrested, they will be asked to submit to a breath or blood test at the jail. A refusal to submit can be used against the person in court as well as have negative driver license consequences. A person who does submit to a breath or blood test and is over the legal limit can also lose their license.
Expunctions or NonDisclosures
When a person is arrested for a criminal offense, it leaves a permanent record. This record will show up on background checks related to employment, home rentals, etc. In many cases, these records may be eligible for expunction or non-disclosure, in which the criminal record is thrown out or suppressed. According to the Texas code of criminal procedure, anyone who has been placed under arrest for a felony or misdemeanor, has the right to have his or her record expunged in the following circumstances:
1. The person was arrested and tried for an offense, but no indictment was presented or if the indictment was presented, it expired or was quashed due to misinformation/mistakes.
2. The person arrested was released and the charges made did not result in a conviction.
3. Preceding the date of arrest, the person has not been convicted of a felony for the past five years.
It should also be noted that a person may have their record expunged if they have been tried for the offense for which they were arrested and convicted, if their charges were later acquitted. However, if the said person is being tried for other offenses, this will not apply, in addition to other certain circumstances.
Felonies
Crimes are either felonies or misdemeanors. A misdemeanor carries a penalty of up to one year in jail, while a felony, a more serious offense, carries a maximum sentence of more than one year, and depending on the charge, can carry a life sentence or even the death penalty.
Felonies are generally classified by degree of seriousness. In Texas the law designates three degrees, first, second, third, plus two other categories, one is a state jail felony, which is the least serious type of felony, and the most serious type of felony punishable by execution, is called capital felony and is intended only for premeditated murder.
Felony punishments range in severity from probation to imprisonment to execution, for premeditated murder and other serious crimes. Other consequences felons face include loss of professional licenses or exclusion from particular lines of work such as nursing, teaching and law enforcement. Loss of voting rights, ineligibility for public office and prohibition from purchasing or possessing firearms or ammunition, which means never being allowed to get a hunting license or even being in a hunting camp. In Texas, imprisonment or conviction of a felony is also grounds for divorce. And individuals who are not U. S. citizens are subject to deportation after a felony sentencing.
Juvenile Crimes
Juvenile crimes are those crimes committed by a person who is 17 years old and younger. Juvenile crimes run the gamut of criminal offenses including drugs possession, shoplifting, robbery, rape, stealing, arson, traffic violations, weapons charges, and even murder. In the state of Texas, a child can be charged with a felony or misdemeanor, just like an adult. A juvenile offender can also be charged for crimes based on his age such as truancy. However, juvenile crimes, unlike adult criminal cases, are handled in civil proceedings. Punishments can range from detention, house arrest, treatment programs, to deferred sentencing as well as actual jail time.
Property Crimes
Property crime involves the taking of property or money by illegal means, without the owner’s permission. This category can be broken down further into different types of property crime such as: Burglary, Larceny, Theft, Shoplifting, Motor vehicle theft, Arson, Vandalism
Depending on whether the property stolen was of lower or higher value, thefts are regarded by the state as ‘petty’ theft or ‘grand’ theft. Stolen property valued between $100-$300 is considered petty, whereas amounts higher than that come under the category of grand theft. Within grand theft, there is first, second, third degree and fourth degree grand theft, with first degree grand theft having the heaviest penalties. If someone has been accused of a property crime, the determining factor for charging the offender with a misdemeanor or felony is either based on the value of property stolen or the amount of property damage done. Penalties may include restitution, probation and prison time.