- How is sentencing decided?
- If a police officer approaches me and begins to ask questions, must I answer them?
- At what point can an officer detain or arrest an individual?
- Does the officer need a Warrant to Arrest me?
- When can an officer search me?
- Do the police have to read me my rights before questioning me?
- DWI Myths
- Should I submit to a breath test if an officer suspects I am Driving While Intoxicated?
- What does Proof Beyond a Reasonable Doubt mean?
How is Sentencing Decided?
The following three factors generally influence sentencing:
1) The type of crime for which you’ve been convicted,
2) Sentencing Guidelines and Statutory Recommendations for the Crime, and
3) Your Criminal History.
In addition, sentencing is usually broken into four categories:
1) Fines,
2) Community Service,
3) Probation, and
4) Jail or Prison
It is important to note that many states have minimum sentences for certain crimes, which means the judge has no discretion in deviating from the minimum sentence, even if you have good facts or circumstances in your case that would merit a deviation.
Judges tend to levy the harshest penalties on those who are repeat offenders or those who commit violent offenses. If you have prior convictions in your record, you need an attorney who can work with the prosecutor in order to secure a lesser penalty and provide the judge with evidence that overshadows your previous convictions.
If a police officer approaches me and begins to ask questions, must I answer them?
Short answer is probably not. If a police officer asks for information about your identity, do not lie to them as that is a crime. You will have to give your identification information to the police after you are arrested, but for the most part you never have to answer any questions that the police ask you. And sometimes, it’s better if you don’t, but it depends on the circumstances.
At what point can an officer detain or arrest an individual?
An officer can detain a person if they have “reasonable suspicion” based on objective facts, that the person is involved in a crime. The important thing to remember is that it is sometimes difficult to tell if the officer has detained someone. The best way to determine if an individual is detained is to consider if a reasonable person would feel free walk away from the officer. If a reasonable person wouldn’t, that person is probably being detained.
An arrest can occur when the officer has probable cause to believe that the person has committed or is committing a crime.
Does the officer need a Warrant to Arrest me?
No. While the Texas Code of Criminal Procedure requires an officer to have a warrant to arrest, there are exceptions to this rule. Some of the exceptions include the following:
1 ) An offense is committed within the officer’s view
2 ) An offense is committed within the view of a magistrate and the magistrate orders the arrest.
3 ) A person is found in a suspicions place and under circumstances which reasonably show that such person is guilty of some felony, breach of the peace or has threatened, or is about to commit some offense against the laws.
4 ) Officer has probable cause to believe that a person has committed an assault resulting in bodily injury to another person and the officer has probable cause to believe that there is danger of further bodily injury to that person.
5 ) Officer has probable cause to believe a person has committed family violence.
6 ) Officer has probable cause to believe a person has violated a protective order.
7 ) A person freely makes a statement that would be admissible against the person and establishes probable cause to believe that the person has committed a felony.
8 ) An officer– based on information obtained by a credible person – has satisfactory proof that a felony has been committed, the offender is about to escape and there is not time to obtain a warrant.
When can an officer search me?
During a detention an officer can conduct a frisk for weapons if a reasonable person in the officer’s situation would believe there is a danger to the officer’s safety or to the safety of others. And during the frisk, if the officer feels something that makes it immediately apparent that the object is contraband, it may be seized.
Do the police have to read me my rights before questioning me?
Not exactly. The police have to read you your rights before they can conduct a “custodial interrogation.” In most cases, the officers will read you your rights and let you chat away because anything you say will be used against you and it is presumed that you are giving your statements voluntarily. The tricky part is determining when you are actually “in custody.” Clearly, when you are handcuffed you are in custody. But, what about when an officer knocks on your front door and wants to ask you a few questions? Are you in custody then? The best way to determine if you are in custody is when you no longer feel you have the ability to terminate the encounter with the officer. At that point, questions the officer asks could be construed as a custodial interrogation and you have to be read your rights.
DWI Myths
Myth # 1: An individual has the right to consult with a lawyer before either agreeing or refusing to take a breath test, blood test, or field sobriety test.
Answer: Nope. Texas has an implied consent law which means that – as a condition to maintaining your driver’s license – you’ve agreed to submit to these types of tests. If you refuse to submit to them, your license will be suspended.
Myth # 2: DWIs only apply to those who drink alcohol and then drive?
Answer: Not quite. The state may prove intoxication in one of the following three ways:
1) An individual lost the normal use of his mental faculties by reason of the introduction of alcohol, a controlled substance, a drug, an illegal drug, or any other substance into the body,
2) An individual lost the normal use of his physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, an illegal drug, or any other substance into the body, or
3) An individual has a breath alcohol content or blood alcohol content of .08 or higher.
You can be found guilty of DWI if you take prescription medicine such as Xanax (Zanax) and then drive. Alcohol is the most common form of DWI, but as you can see the state can prove DWI a variety of different ways. Also note, even if you do not have a breath or blood alcohol content of .08 or higher, you can still be found guilty of DWI, if the state can prove that the ingestion of alcohol caused you to lose the normal use of your mental OR physical faculties.
Myth # 3: Police officers are required to advise an individual of their rights (Miranda rights) prior to having the individual submit to a breath or blood test or perform field sobriety tests.
Answer: Unfortunately, no. The courts have ruled against this misconception and claim that these tests are “nontestimonial.” The Miranda warnings are not required.
Should I submit to a breath test if an officer suspects I am Driving While Intoxicated?
The first question you should ask yourself is – and be very honest with yourself – have I had too much to drink. Then ask yourself, do you feel lucky. If you’ve had a few drinks but do not feel the alcohol has compromised you physically or mentally, and you truly think you have a Blood Alcohol Content under .08, you may want to blow. If you don’t, you will likely be arrested, have your licensed suspended, and probably be charged with a DWI. However, the decision to charge you with a DWI will come from the District or County Attorney’s office and if you don’t look intoxicated on the video tape when you perform the field sobriety tests, it is quite possible that you won’t be charged. Remember, though; even if you blow under .08 you can still be charged with a DWI, so it’s important that you do not look like you are intoxicated on the police video tape.
However, if you know you’ve had too much to drink and believe you are over the limit, you should not submit to a breath test. What you should do is be polite, stay awake in the police car, do not urinate on yourself, do everything you can to keep from throwing up, and above all do not talk, providing your basic identification information is all that’s needed.(You have the right to shut up, and you should use it).
What does Proof Beyond a Reasonable Doubt mean?
“Persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.” (Texas Penal Code § 2.01).
There is no exact way to determine beyond a reasonable doubt. However, in comparing it to civil standards of proof like “preponderance” and “clear and convincing” we can get a general idea of what beyond a reasonable doubt means. Preponderance of the evidence would mean greater than 50%, while clear and convincing evidence would likely mean 75% or higher. Beyond a reasonable doubt would probably be quantified as approximately 99%. So, the state would have to prove beyond a reasonable doubt to the jury all elements of the crime for which the defendant is charged and the jury would have to find that the state meet that 99% burden for each element of the crime before rendering a guilty verdict.
In practice though, it’s not that black and white. Sometimes the jury just doesn’t like the defendant for whatever reason or believes that the police always tell the truth and therefore nothing else can be said to change that juror’s mind. This is why it is important that you obtain an attorney who can work to identify those jurors who will not be impartial or favorable to your case, and do everything they can to get them off the jury.
