What Should You Do If You are the Victim and Want to Drop Criminal Charges?

Posted on: July 31st, 2016 by webmaster No Comments

Say you’re the victim of an assault.  Maybe your deadbeat boyfriend hits or kicks you several times while you guys are arguing about something.

You’re hurt and angry so you call the police.  He goes to jail even though maybe that isn’t really what you wanted.  But “the state picked it up,” meaning they filed a case against your wishes.  

Or, maybe you got attacked one late night while leaving the bar. You know the attacker well. And you’re afraid they might do something even worse if you prosecute. These can be hard choices because they really should get punished.

Maybe you want to drop the charges for different reasons entirely. Maybe you lied to the police because you were mad and the accused didn’t really even assault you.

But can you drop the charges?

Who Really Has The Authority to Drop Criminal Charges (Or Not)?

In civil lawsuits, which can sometimes arise from these situations, your attorney files a lawsuit against the Defendant for you, the victim (Plaintiff). As a result, you have the power to instruct your attorney to pursue or not pursue the civil action after it is filed.  You could choose to drop it.  

However, in criminal cases, the State of Texas, the Federal government, or both, through their prosecutors bring their cases against the defendant. They are the ones that have the power to drop the case or move forward with prosecution. You do not. You can only request that the prosecution “drop the charges.”

You can most accurately think of yourself as a witness to the crime against you.  Witnesses represent the government to prosecute people who break the law.  You are a witness for them, but not their client.

But, You Still May Be Able to Get the Charges Dropped

While you do not have the authority to drop charges, you’re not totally powerless. You can ask the state or federal government’s prosecutor to drop the charges, but they do not have to honor your request.  A good prosecutor will usually take your wishes into account when considering what the appropriate punishment should be, but they make the final decision.  

If you want to ask the prosecutor to do so, you fill out an “affidavit of non-prosecution,” or “ANP” for short. You sign this document under oath, citing the reasons you do not want the case to be prosecuted.

However, there can be some complications in this matter. For example, if you make statements inconsistent with what you originally told police, you could be seen as having made a false police report, which is a Class B misdemeanor that can put you in jail for up to 180 days and cost you up to $2,000 in fines.

Food for thought … just like someone should have a consequence for breaking the law, if you lied to the police and someone is about to get punished for something they DIDN’T do, you have a hard choice to make.  To tell the truth or not to tell the truth, that is the question.  

That’s why it makes sense to have a criminal defense attorney on your side. To protect your interest to the extent possible but preventing an injustice from occurring against an innocent person.  But, make sure you seek counsel from a lawyer not already defending the accused. That would be a conflict of interest for them to be defending the charged criminal and pursuing your desire to drop the charges.

Ultimately, the prosecuting attorney decides whether to drop the charges in the case or not. With the help of an experienced criminal defense attorney, you give yourself the best chance of making that happen.

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What You Can and Can’t do Under Texas’ New Open Carry Law

Posted on: July 15th, 2016 by webmaster No Comments

On June 13, 2015, the Texas legislature passed a bill that allowed concealed carry handgun owners to carry their handguns openly. The new bill took effect on January 1, 2016. Believe it or not, that made us (Texas) the 45th state to allow this.

What’s it allow you to do, and what’s it stop you from doing? You’ll want to know because you don’t want to forget or be unaware and suddenly find yourself facing stiff fines or jail time.

Check out a quick summary of what you can or can’t do:

What You Can Do

1. To legally carry a handgun you must have a concealed handgun license (CHL).  The new open carry law also now allows you to openly carry a handgun in a belt or shoulder holster only.

2. You can carry your handgun in any type of belt or shoulder holster. Regulations do not govern specifics about the belt or shoulder holster.

3. On August 1, 2016, you will be able to carry your loaded, concealed weapon on all state 4-year college and university campuses. The law extends to private 4-year colleges on August 1, 2017. Colleges will have an option to opt out.

4. Your concealed or open-carry firearm can be loaded while you carry.

What You Can’t Do

1. You can’t carry a handgun open or concealed without a CHL.

2. You cannot open carry on the premises of an institution of higher education, public or private. After August 1, 2016 when “campus carry” laws take effect you will be allowed to carry concealed only. You still may not open carry on any private driveway, street, sidewalk, walkway, parking lot, or parking garage of a public or private institution of higher education.

3. You cannot open carry when acting as a personal protection officer while not wearing a uniform.

4. You can’t open carry in areas already designated as “gun-free zones.” This currently includes secured areas of airports, schools, polling places, courtrooms, high schools, colleges, professional sporting events, and government meetings.

5. Be VERY careful while in airports. While you can carry in public areas like baggage, ticketing, parking garages, and public sidewalks, you cannot carry a loaded or unloaded handgun on your person or in your luggage past TSA security checkpoints.

6. You can’t get a Concealed Handgun License (CHL) until you’re 21 years old.

7. You can’t get a CHL if you’ve been convicted of a Class A or B misdemeanor, which includes conviction of a DWI (a class B misdemeanor at least).

8. You can’t carry if you don’t have a CHL license that’s current. If you’re waiting for a renewal license or your first one, you cannot carry.

9. It would be wise to avoid causing any disturbance or engaging in any conduct that would be perceived as threatening someone while openly carrying your handgun.

10. Your gun must stay in the holster (unless you are forced to use it to defend yourself or another against someone’s use of unlawful deadly force against you).

What About Businesses and Government Buildings?

With businesses, the law remains that if they want to prevent CHL holders from carrying in their business they have to post the required section 30.06 or 30.07 signs. So, make sure to look for them as you enter. They are allowed to ban or not ban concealed or open carry as they see fit.

For example, Kroger and Home Depot support open carry but Whole Foods, Torchy’s Tacos, and Whataburger do not.

With government property, debate exists. If a building is multi-use and serves government, and other, purposes, it may or may not allow open carry, depending on the jurisdiction. If you have to be on government property and want to take your handgun, call the institution first before you go to get clarity on what you can and can’t do.

As it stands right now, those are the basics. Remember, if you’re not sure about open and concealed carry laws where you’re going, call and ask or research the internet for clarification first. Some states have laws in place that allow you to carry in that state if you are licensed in another state, others do not. There’s no sense in taking an unnecessary risk that could cause you costly fines.

And if you do find yourself in legal trouble, hire an experienced criminal defense attorney because losing the case and getting convicted can result in you losing your handgun license in addition to whatever other punishment is assessed.  

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What to Do (and Not to Do) If You Get Asked to Do a DWI Field Sobriety Test

Posted on: June 30th, 2016 by webmaster No Comments

You’ve had yourself a good, safe, and responsible night drinking your favorite drinks with your buddies. You made sure not to overdo it and get hammered.

But, you know you’re somewhat on the borderline. You could possibly have an over-the-limit BAC (Blood Alcohol Content). But maybe not. It’s close. You’re on the edge.

And then you get pulled over by the police. It’s 1:00 AM, so both you and they know full well what they’re suspecting you of.

After asking you basic questions about yourself, the officer asks you to do a field sobriety test. How should you respond?

1. Refusing a Field Sobriety Test Makes Sense, But It Carries Consequences

Remember, when the officer has you do a standardized field sobriety test (SFST), they are investigating you for a crime. Their job is to gather evidence on you so they can put you in jail and later get a conviction on the case.

A key component of convicting you lies in the results of your field sobriety tests and possibly a breath or blood test after you get arrested. However, you can, and should, politely refuse to take any and all of the tests.  By refusing you are simply keeping any evidence that might look incriminating from them, which ultimately weakens the case against you.

Unfortunately, law enforcement has found a way around refusing to take a blood test. You may have heard of “No Refusal Weekends.” Nowadays police can get a search warrant that allows them to forcibly take your blood if you refuse to take the test when requested.  The law allows for it now so you are wise to cooperate if they do get a warrant to take your blood.

Attorneys will tell you that it is in your best interest to refuse to take a field sobriety test. Remember, these tests are designed to make you fail. They ask you to perform awkward movements, like walking heel-to-toe with your arms at your side and turning in an odd fashion. Plus, you have to do this in front of the police and other cars passing by.  That’s a high-pressure situation that makes even stone sober people nervous!

There is even one where they wave a pen in from of your face and are supposed to be able to tell if you are intoxicated by looking at your eyes.

Once you refuse, you’re probably going to go to jail and have your license suspended (initially) for 180 days to 2 years. While you have short-term consequences, refusing may save you from a successful prosecution down the road.

2. Only Answer These Three Questions

The officer has the right to know your name, address, and date of birth. Be kind and courteous as you offer that information. Remember, you’re on camera this whole time. And this evidence will be shown in court. A cooperative attitude makes you look good.

Once the officer asks you, ”Have you been drinking?” or, ”How many drinks have you had tonight, sir?” ask for an attorney instead. Those questions are designed to gather evidence against you. How you answer plays a large role in whether you’re successfully prosecuted.

A good criminal defense attorney can give the jury a compelling reason you decided not to answer.

3. Always be Polite

The officer may not carry a courteous attitude with you. The best advice here is to let it go, and continue to be calm and polite yourself. The officer’s demeanor can come back to bite him when your case goes to trial.

The Best Advice? Avoid Driving with Any Alcohol in Your Body

On the “No Refusal Weekends,” law enforcement can get ticky-tack with drinking and driving. Some are so overzealous that they might try to nail you with drunk driving charges, even if you only had 1 or 2 drinks during an afternoon barbecue at your neighbor’s house.

A DWI charge often costs $10,000 – $15,000 or more to defend. So, it makes sense to just avoid drinking any alcohol at all before driving, or to use a designated driver.

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Do I Need a Lawyer If I Have Been Asked to Come in for Questioning?

Posted on: June 15th, 2016 by webmaster No Comments

You get a phone call, and this time it’s definitely not one you want. It’s not a trustee of the estate of a long-lost relative calling to say you got an unexpected inheritance.

Instead, it’s a law enforcement official. They want you to come and talk to them about a situation that happened recently.

Just about every person would fly into a panic in such a situation. And you probably would too.

How does this work?

Do you have to go in?

Should you go in just to get the state or Feds off your back?

Should you have a criminal defense lawyer with you if you do choose to talk to law enforcement?

1. For Starters, Do You Have to Go?

The answer is no, you do not. Law enforcement needs a subpoena or to arrest you to legally obligate you to talk to them.

There’s a couple considerations in this situation. One is, how will it look to law enforcement if you do refuse to come in? Innocent people, after all, don’t have a problem talking about their version of events because they did nothing wrong.

On the other hand, you’ve seen plenty of investigative reporting. While law enforcement is most often honest, sometimes they coerce confessions out of innocent individuals.

The reality is that, at this point, they may be suspecting you of a crime but do not have the evidence to arrest and charge you yet.

In a tough spot like this how do you decide?  Consult a lawyer.  They will charge you for some advice but it is money well spent.  It can make a huge difference.

2. If You Decide to Cooperate, Should You Have a Lawyer Present?

You absolutely should hire a criminal defense attorney and take him or her with you. The simple reason is that law enforcement knows the law and exactly how to question you so you incriminate yourself. You don’t know the rules of their system. So, you’re at a huge disadvantage and you could easily make statements that can lead to your conviction, even if you are innocent.

While law enforcement did not have the information they needed to arrest and charge you, their goal in questioning is to get you to give them that evidence.

3. How Does Having a Criminal Defense Attorney Help You?

With a criminal defense attorney present when you talk to law enforcement, you have someone who knows the laws authorities operate by. You have more power and security during questioning. And that means you get help making sure you don’t say things that incriminate you.  Police are trained to pose questions in such a way that it seems like answering them is the fastest way to get them to leave you alone but what they are really trying to do is build a case against you.

It’s important to tell the truth when it is in your best interest. But there are other times when, innocent or not, you should not say anything. A criminal defense attorney can understand the situation from a legal perspective, so you don’t experience any unnecessary or unfair criminal punishment. Remember that you always have the right to remain silent and in many cases attorneys have to advise their clients that it would be in their best interest to exercise that right.

If you have to talk to law enforcement, having a criminal defense lawyer on your side is the only way to go.

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If I Have a Probation Violation, Will I Be Able to Get Out of Jail on Bond?

Posted on: May 31st, 2016 by webmaster No Comments

You get probation for committing a crime. Let’s say it’s a drug offense.

A year later, you’ve been doing a really good job staying clean. Then, you just can’t stand it anymore and you get high.

You try to cover up your tracks. But, you mess up. Your Probation Officer catches you. Now you are faced with fighting to keep from getting your probation revoked.  What now?

What Happens After a Probation Violation?

If you confess a violation of your probation to your PO, or if they suspect you’ve violated your probation, they immediately submit a notification to the judge. The court probation officer will prepare either a “Motion to Revoke Probation,” if you’re on regular probation, or a “Motion to Adjudicate” if you’re on deferred adjudication that is signed off on by the State prosecutor.

Regardless of the name, it’s a Motion asking the court to take away your probation and put you in jail because you violated the probation conditions. It outlines how they say you’ve violated your probation. You have the right to fight the allegations at a hearing in front of the judge.

The judge is usually going to issue a warrant for your arrest based on the Motion. You go to jail and you get a court date to discuss what happens next.

You’ll have to sit in jail until your court date or post bond if you can afford it. (more on that below) On your court date, the prosecutor and your defense attorney try to work out an agreement about what should happen for your violation if possible.  If you want a hearing on the motion in front of the judge or if no agreement can be reached then the lawyers present arguments and the judge decides.  There is no jury.

The possible outcomes can include reinstatement of your probation, a modification of conditions of probation and then reinstatement or revocation and jail time.

How do Bonds Work in This Case?

In regard to bond, you have to first know that bonds work differently for regular probation and deferred adjudication.

For regular probation, the law does not entitle you to bond. But the judges usually (but not always) set one unless they really don’t want you released at all. If you are on a deferred adjudication probation, the law requires that the judge set a bond amount. However, it can be set very high so as to make it financially difficult for you to afford.  Paying a bondsman to get you out of jail can help with the cost but it is often still expensive.

Additionally, the other bad news in the case of probation violation, is that the state has a much lower burden of proof. Rather than being required to prove you “guilty beyond a reasonable doubt” (like they would in a criminal trial) the state of Texas simply has to show you violated your probation via a “preponderance of the evidence.” In plain English, that means it’s more likely than not you committed the actions you’re accused of.

So, it’s a much easier burden of proof. There are also many nuances here that can vary, depending on the judge presiding over your case. Some judges are nicer and more lenient than others.

The advantage of having someone knowledgeable about the local judges and their tendencies and opinions about probation violations plus the lower burden of proof in probation violation situations, are two good reasons why you should hire the best criminal defense attorney you can get.

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What Rights Do Victims Have in Affecting the Prosecution of a Criminal Case?

Posted on: May 31st, 2016 by webmaster No Comments

If you’re charged with a crime, what kinds of rights does the victim have? What can they do to you? How can they affect you and the outcome of your case?

Take a look, first starting at the Federal level. The victims’ rights movement of the 1970s and 1980s greatly influenced the rights victims have today.

And today, at the Federal level, they have eight rights, which are established by Title 18 of the US Code, Crimes, and Criminal Procedure. Here are those rights explained in simple, plain-English language:

1. Victims can be reasonably protected from you

2. They can be timely notified of any public court or parole proceeding involving you, including if you escape

3. They have the right to not be excluded from any public court proceeding unless the court determines their testimony could be altered as they heard other testimony during the proceeding

4. They can be reasonably heard at any public proceeding involving you

5. They have the right to confer with the government’s attorney

6. They are entitled to full and timely restitution

7. They get to have proceedings free from unreasonable delay

8. They must be treated with fairness and respect

What about the State Level?

In addition to those rights at the Federal level, Texas adds a few more rights for victims at the state level. These can be found in Chapter 56, Article 1, Section 30 of the Code of Criminal Procedure:

1. Victims can have their safety considered when the local magistrate sets your bail

2. They can request to be informed about your right to bail and criminal investigation procedures regarding your case

3. Victims can provide appropriate information about the impact of your crime to the probation department

4. They can be notified about your parole proceedings and can participate in the process by submitting written information

5. They can request victim-offender mediation

6. They can write a “victim impact statement” that can be considered during sentencing, plea bargaining, and parole

7. Victims even have more rights than that in Texas. But those are the most relevant ones to you.

The prosecution may choose to allow the victim to make a statement to the judge during a punishment hearing to allow them to tell the judge what they want the judge to do.

There’s really no solid defense against this. You can cross=examine the victim, but you have to be careful how you approach this.  If you do challenge the victim’s statement, you start to get seen as being against the victim, rather than defending your own case.

So you may want to challenge them only in situations where you have nothing to lose, such as when you face the possibility of life in prison and you have no other choice.

Can victims affect the prosecution and sentence you receive? Absolutely. And that’s why you need an experienced criminal defense lawyer on your side.

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What are the Federal Sentencing Guidelines and How Do They Affect Punishment in Court?

Posted on: February 29th, 2016 by webmaster No Comments

The Federal Sentencing Guidelines are non-binding rules that outline how defendants should be sentenced for their crimes. “Non-binding” means judges are required to calculate and consider the guidelines when sentencing. However the guidelines are not mandatory. And because they aren’t, judges have some discretion to sentence someone higher or lower than the calculated guideline’s range.

To go against the guidelines, a judge is required to make findings of fact and document legal justifications for why they did not follow the guidelines. All of those decisions are reviewed by the Federal Sentencing Commission in Washington D.C.  So, expect them to sentence according to the guidelines in most cases.

Judges may consider a broad range of factors and not follow the guidelines when they feel the facts of the situation warrant an increase or decrease in your sentence. However, they have to be careful when they choose to do so. They have to explain the factors that made them come to their decision in detail.

The current United States Federal Sentencing Guidelines came into play in 1987 and were written by the US Sentencing Commission. Prior to that, federal judges could literally impose whatever sentence they wanted on you for your crime.

Unsurprisingly, that led to people committing nearly the same crime and receiving wildly different sentences for it in different parts of the country. So, that in turn led to the creation of the sentencing guidelines.

How do the Federal Sentencing Guidelines Affect Your Punishment?

The guidelines assist the courts in determining a starting point for consideration of the appropriate punishment for a defendant who has committed a substantially similar crime and who has a similar criminal history to other defendants.  Then, after hearing the arguments of the attorneys, they have the discretion to follow the guidelines or to do something different.  It is the job of the defendant’s attorney to try to establish that his client is “outside the heartland” of the types of persons contemplated by the guidelines and to convince the judge to reduce the punishment below the calculated guideline range.

In addition to the guidelines, the court must consider the range of punishments the law allows. Every criminal act carries a statutory maximum, which is the largest punishment you can possibly receive. And some, but not all, crimes include a mandatory minimum.

Look at an Example to See How the Mandatory Minimums Work

John gets convicted of a crime that requires a mandatory minimum of 5 years. However, the sentencing guidelines disagree and say John should get 37-46 months in prison. Because 60 months is the mandatory minimum, John must get at least 60 months in prison for his crimes.

However, two exceptions to mandatory minimums exist, which could reduce John’s sentence:

1. The “safety valve,” which is a statutory test that only applies to federal drug offenses. If John meets the requirements of all five parts of the test, the judge may use the sentencing guidelines to give John a sentence below the mandatory minimum.

2. Providing “substantial assistance” to the prosecution can allow for the judge to go below the mandatory minimum sentence. If John gives prosecutors useful information for bringing other criminals to justice, the prosecutor can ask the court to give him a sentence below the mandatory minimum.

In the end, the Sentencing Guidelines are just that – “guidelines.” That’s it. They give you a good, but not perfectly accurate, idea of what sentence you may receive for your crimes. Judges usually stay near them, but ultimately the judge has the discretion to determine what the sentence will be, and nobody can promise you in advance what the judge will do.

Your attorney should be well versed in the application of the guidelines to your case and be willing to be creative in crafting an argument that will help convince the judge to give you a reduced sentence.

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What is an Open Plea? Why Would You Choose One?

Posted on: February 16th, 2016 by webmaster No Comments

Let’s say you get charged with a serious crime. For example, maybe it’s First Degree Murder. If convicted, you could receive life in prison.

The prosecution decides it’s willing to offer you a plea bargain of 50 years in prison in exchange for a guilty plea. You don’t want to experience either of those consequences. You believe that based on the evidence you have seen, and advice from your criminal defense lawyer, that you do not want to go to trial either, but instead want to try for a reduced sentence.

So, in hopes for a reduced sentence, you can enter an “open” plea to the court.

What Does It Mean to Plead “Open?”

“Open” is a confusing term. Think of it as a plea where the full range of punishment is “open” for the judge to consider for punishment.

The idea is that you plead guilty to your crime without any agreement from the prosecutor on what the punishment will be. Then, both the prosecutor and your defense attorney present their arguments to the judge, hoping the judge makes a decision that favors them.

During the plea negotiations, you got an offer of 50 years from the prosecuting attorney. If you and your defense attorney feel that offer is unreasonable, then in reality, you’re rejecting the prosecuting attorney’s offer.

Should You Make an “Open” Plea?

You should consider pleading “open” only under the advice of your lawyer. And you should have a good criminal defense lawyer at that.

Because, the judge can still think you deserve the worst sentence possible. And, they can give it to you anyway, even if you do make an open plea.

To successfully plead “open,” these circumstances are beneficial:

• Factually weak case prosecuted by the state

• Mitigating circumstances and sympathetic defendant

• Fair-minded judge

• Unreasonable offer by the prosecutor

Two things you have working in your favor when you plead “open” are:

1. You accept responsibility for your actions

2. You avoid trial

The judge likes both. So just by pleading open, you build favor with the court. However, pleading “open” does not guarantee you a lesser sentence than originally offered.

That’s why it makes sense to have an experienced criminal defense attorney on your side. They should know the personalities of the judge and prosecutor, or how to size them up so they know how you should approach your case to get the best outcome possible.

That could involve entering an “open” plea. Or, it could involve pleading guilty, not guilty, or no contest. That decision is yours after consulting with your lawyer. Since it’s your future, you want to make sure you have the best criminal defense lawyer possible on your side.

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What’s the Difference Between Regular and Deferred Probation?

Posted on: January 18th, 2016 by webmaster No Comments

When you hear the words “deferred adjudication probation,” your ears should immediately perk up.

In simple layman’s terms, it means you get a second chance to avoid a final conviction, provided you comply with the terms of the probation.

Literally, instead of finding you guilty when you begin your probation, the judge “defers,” or puts off, a finding of guilt to see if you choose to change your ways and comply with your probationary requirements.

It’s something an attorney can argue for in the case of a client who is a first-time offender for example. And if you make it through your probationary period and stay within its guidelines, the case goes on your public record as basically a dismissal, rather than a conviction. You are never convicted of the charges.

Also, and this is a big deal, after successful completion of a deferred probation you may be eligible to have the records of the probation sealed by filing what is called a “Petition for Nondisclosure.” If granted, the case will only show up on a law enforcement background search.

So, for example, a future employer would not see it if they ran a simple civilian level background check.  An attorney can advise you on whether or not you are eligible for this depending on the specific charges you face and whether there are waiting periods associated as to when you can file it.

There are a few types of charges, such as DWIs, in which the law does not allow deferred probation as an option.

How is Regular Probation different than Deferred?

Regular probation means the judge finds you guilty of your charges. You are legally convicted of the crime and sentenced to a term of imprisonment. However, instead of imposing a jail sentence against you at that time the judge places you on probation and orders you to comply with probation conditions.

The big problem for you in the future is that conviction.  It can never be removed.

The conditions of probation are often similar whether the probation is regular or deferred.

What are the Potential Consequences of a Conviction?

Even after successfully completing a regular probation, you’ll still have a criminal charge conviction on your public record. Beyond that your public reputation could be damaged, perhaps permanently and irreparably. You could lose your professional license. You could lose your job. You could have a difficult, nearly impossible time, finding similar employment in the future. You may have a hard time getting into the college you want. You may have difficulty getting student loans, grants, or scholarships.

You’ll have to think carefully about what a criminal conviction on your record could mean in your life.

Other Major Differences

So those are the main differences. A couple others you’ll want to note:

• Judges are more likely to terminate your deferred probation early after you have completed your classes, community service and paid off your fines and fees. You must first complete the lesser of two years or 1/3 of your probation first.

• If you violate your regular probation, you can be required to serve the original sentence. However, if you violate your deferred probation, you may be required to serve any length of your sentence that law allows. And that could include the maximum sentence.

• Also, you can’t get regular probation for many types of offenses. This generally includes more serious offenses like capital murder and aggravated charges. Deferred probation is simply unavailable for DWI cases.

Deferred Probation Can Be a Big Nightmare Too

Your probationary period can last for several years. And if you get in any sort of criminal trouble during that time, even if the activity is far different and lesser in severity than your original charges, you can possibly face the maximum sentence for your original charges anyway.

You can lose your rights to a trial by jury, or to appeal your sentence. And a judge alone has the discretion as to what your sentence should be.

As always, you’re smart to talk to a criminal defense attorney whenever you face any criminal charges. They offer free consultations, so you can get a sound legal opinion on what a fair outcome should be for your actions, and what choices you should make to get that.

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Can You Be Prosecuted in State & Federal Court for Same Crime?

Posted on: January 1st, 2016 by webmaster No Comments

Say you decide to smuggle drugs across state lines. You’re caught in the process.

Can the State of Texas and federal government both put you on their own trial and give you separate sentences?

Doesn’t seem fair at first does it? After all, you only committed one crime. So why should you have to pay for it twice?

How Double Jeopardy Works

You’re probably familiar with the idea that you can’t be charged twice for the same crime. The law actually originally comes from ancient Greece. And today, our Fifth Amendment protects you from being repeatedly prosecuted for the same crime.

However, when multiple jurisdictions get involved, double jeopardy no longer protects you. Instead, you are viewed as having committed separate offenses. “Dual sovereignty” gives both state and federal government the power to prosecute you for the same crime.

So let’s go back to the example of you smuggling drugs across state lines. Technically, you could be prosecuted in all states whose laws you violated, and also by the federal government because you crossed state lines. However, a state prosecutor may choose to cede (“give up”) their jurisdiction when multiple states are involved.

But you could still face charges by both the federal and at least one state government. As recently as last year a Federal appeals court has ruled on this issue.

Case Example: Roberto Miramontes Roman

Roman, a Mexican citizen, was charged with the murder of Josie Greathouse Fox by the State of Utah in 2012. He initially confessed to the charges, but later recanted.

Fox was following Roman and another man for hours on suspicion of drug trafficking. After Fox pulled them over, she was shot by either Roman or his accomplice immediately after exiting her vehicle.

The Utah jury found enough reasonable doubt to acquit Roman of the murder charges.

However, since federal law enforcement was attempting to arrest Roman for felony drug violates, they also claimed jurisdiction. Roman’s defense attorney argued the dual sovereignty exception should be eliminated. The US attorney prosecuting the case said the federal prosecution does not amount to double jeopardy.

Ultimately, the 10th Circuit Court of Appeals decided in June of 2015 that Roman’s charges do not amount to double jeopardy. And therefore, the charges will stand and proceed. The US attorney then added on charges of killing a law enforcement officer while fleeing apprehension.

Accused of a State and Federal Crime? You Might Do Double Time

Whether you think being charged twice for the same crime by different authorities is fair or not, it’s the way law works in the United States now.

If you face charges for both a state and federal crime, you need an experienced criminal defense attorney with a proven track record of success on your side.

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