Can I be arrested for dwi/dui and not be driving?

Unfortunately, the short answer is, yes. There are a few ways in which this can happen. The state has only to prove that you were driving or operating a motor vehicle.

The police come upon you after an accident and you are standing outside of the car. Your admission to them that you were driving can be all the evidence they need. Good samaritans at the scene can also testify to put you behind the wheel. Nothing you can do about the eyewitnesses but you do not need to help.

You decide to pull over or stay in a parking lot and sleep it off. Do not leave the engine running to stay warm. Texas case law says that merely turning on the car is operating a motor vehicle.

A “friend” or family member calls the police and says to the that you were driving and intoxicated. You are now home in bed. There is no law that says you have to answer the continued knocking of the police unless they have a no-knock warrant, which the do not for a misdemeanor. Remember, you do not need to help them.

A good lawyer can help alot if you find yourself in one of these situations by using the weakness of the case as mitigation.


Do the Police Always Have to Read Me My 5th Amendment Rights Before They Ask Questions?

New clients often ask this question. ” Does a police officer always have to read the Miranda Rights to you before he can ask you questions.” The short answer is no. Most folks believe that they walk around protected by the 5th amendment at all times. In reality the 5th amendment and it’s protections apply only in certain situations.

For the 5th amendment to apply the defendant must be in custody. He must be detained by the police and not free to leave. Whether a person is legally detained can be a fact question determined by a judge in a motion to suppress.

If a police officer is merely asking questions of a citizen on the street then all of the answers given can come into evidence at a trial. Since the defendant wasn’t under arrest at the time of questioning there is no requirement for the officer to read the defendant his Miranda Rights. Smart detectives will often conduct “soft” interviews on the street. They may come back several times for more interviews. Often times they get contradictory answers from the suspect which can be very damaging for the defendant at trial. That’s why it is always a good idea to talk to a criminal lawyer before you ever interview with the police.

Robbery or Burglary: What’s the Difference?

Ordinary citizens often confuse the words robbery and burglary when describing a personal experience they have had as a victim of a crime. For example a person may say “My house got robbed” when describing a residential break in. It’s a common mistake but under Texas law they are very different crimes.

I once heard a judge describe the difference perfectly during jury selection. He said, “People get robbed. Houses get burglarized.” Robbery is the theft of property from a person by force. If the victim is threatened with a gun, knife, or other deadly weapon then the crime becomes Aggravated Robbery.

Burglary is when a person enters a house or building without the owners consent to commit theft, assault or a felony. The house or building doesn’t have to actually be broken into to qualify as burglary. Entering without the owner’s consent to commit a crime is the key.

Both crimes are very serious felonies under Texas law. If you are ever accused or investigated for either of these criminal offenses consult with an experienced criminal attorney as soon as possible. Do so before you consent to an interview with the police.

Engaging in Organized Crime Parole Consequences

The Texas Engaging In Organized Criminal Activity statute, better known as Engaging In Organized Crime, is a powerful tool used by law enforcement and prosecutors. Charging criminal activity under this statute enhances the punishment range and also allows prosecutors greater latitude in presenting extraneous offenses to prove the criminal case.

There is another powerful aspect to the statute that isn’t as well publicized but can have dire consequences to the defendant who is in danger of being sentenced to a prison term. Release from prison from a conviction for Organized Criminal Activity requires the defendant to serve half the prison sentence before they can become eligible for parole.

This type of parole requirement typically occurs in aggravated offenses such as Aggravated Robbery, Aggravated Sexual Assault and Murder. Other felony prison sentences for crimes such as theft or burglary don’t require a defendant to serve half the prison sentence before parole eligibility and a defendant can expect to get released long before half their time is served. However, if the same defendant were convicted of Engaging in Organized Crime, and the underlying offense was burglary or theft, the defendant would be required to serve half the time prison sentence before parole eligibility.

The danger of serving aggravated time for conviction under any scenario of the Engaging in Organized Crime Statute should be carefully weighed by the criminal defense attorney when they are in engaged in plea negotiations with the prosecution.

Change of Venue in Texas

Extensive prejudicial pretrial publicity can can create tremendous problems for a defendant. One tool the courts use to assure a fair trial in these situations is a change of venue. In determining whether a defendant is entitled to a change of venue when in there is prejudicial pretrial publicity the trial court decides whether the defendant can receive a trial by an impartial jury free from outside influences or whether there is a likelihood that the pretrial publicity would prevent a fair trial.

There are seven factors courts consider when ascertaining whether outside influences affecting the publicity will favor a ruling for a change of venue.

  1. The nature of pretrial publicity and the particular degree to which it has circulated in the community
  2. The connection of government officials with the release of publicity
  3. The length of time between the dissemination of publicity and the trial
  4. The severity and notoriety of the offense
  5. The area from which the jury is to be drawn
  6. Other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant
  7. Any factors likely to affect the candor and veracity of prospective jurors on voir dire

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