shookgunter, Author at Shook and Gunter

Can I be arrested for dwi/dui if I wasn’t driving?

“Can I be arrested for dwi/dui if I wasn’t driving? That is a question many people ask who were in the car when the police approached them, but actually not 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.

For example. 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 to make an arrest. Good Samaritans at the scene can also testify to put you behind the wheel. There is nothing you can do about the eyewitnesses, but you do not need to help the police build their case. Don’t talk to the police if you have been in a wreck and you have been drinking. You will only hurt yourself and probably get arrested.

Here is another piece of advice. Let’s say 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. The fact that your car engine is running, and you are behind the wheel can give the police enough evidence to arrest.

Sometimes “friend” or family member calls the police and says to the that you were driving and intoxicated. There may be witnesses that reported your car weaving or driving dangerously. You are now home in bed. There is no law that says you have to answer the door when the police knock. Don’t to help the police build their case against you. If you talk to the police and admit you were driving the police may then have enough evidence to arrest, you.

So, the answer to the question “Can I be arrested for dwi/dui if I wasn’t driving?” is yes. A good criminal lawyer can help if you find yourself arrested for DUI. A criminal lawyer can use facts like this to use to your advantage in trial or at a hearing.

May 14, 2019 shookgunter DWI No comments yet

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.

May 11, 2019 shookgunter 5th Amendment No comments yet

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.

May 9, 2019 shookgunter CRIMINAL DEFENSE No comments yet

Engaging in Organized Crime Parole Consequences

A conviction for engaging in organized crime has severe 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.

May 4, 2019 shookgunter CRIMINAL DEFENSE No comments yet

Change of Venue in Texas

Extensive prejudicial pretrial publicity can can create tremendous problems for a defendant to get a fair trial. One tool the courts use to assure a fair trial in these situations is a change of venue. In determining if a defendant is entitled to a change of venue when there is prejudicial pretrial publicity the judge 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.

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

May 2, 2019 shookgunter JURY SELECTION No comments yet

All posts by shookgunter

Can I be arrested for dwi/dui if I wasn’t driving?

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

Robbery or Burglary: What’s the Difference?

Engaging in Organized Crime Parole Consequences

Change of Venue in Texas

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