Category: Houston Criminal Defense

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How to Get a Provisional License after a DWI Conviction

Grant M. Scheiner

How to Get a Provisional License after a DWI Conviction

Posted on by Grant Scheiner

Receiving a DWI (Driving While Intoxicated) conviction can make your life very difficult for a variety of reasons. Beyond the potential fines and possible jail time depending on your case, the loss of your license can also severely impact you daily life, especially if you rely upon your car to get to work. Fortunately you may not be at a total loss if you act quickly and wisely. In this article we’ll explain how to get a provisional license, also known as an occupational license, after a DWI conviction.

According to the Texas Transportation Code your license will be suspended if you refuse to take a blood-alcohol test, fail one, or get convicted of a DWI. If you are convicted of a DWI your license will be automatically suspended from 90 days to one year for a first offense, and for six months to two years for subsequent offenses.

You have the right to file for a provisional/occupational license if you have not already received one in the past 10 years. This temporary restricted license will enable you to travel back and forth to work, school or to carry out critical household tasks.

To get a provisional license, you must explain your essential need in a detailed petition and file it with the court clerk. The judge will then hold a special hearing to determine whether to issue an order granting you the restricted license. The judge will take your driving history in to account, and determine the exact parameters of when and under what circumstances you can drive. You will also be required to show proof of insurance during the process.

Getting Approval for a Provisional License

The judge’s order granting you a restricted license must specify certain information, including:

  • Hours and days of the week when you can drive.
  • Permitted purposes for which you can drive.
  • Areas or routes that you are permitted to drive.

Typically you won’t be able to drive more than four hours of the day unless the judge specifies otherwise. The provisional license will take effect immediately, unless you have a previous DWI offense within the last five-years, in which case you may have to wait 6 months to a year.

Requirements of the Provisional License

The judge will impose certain restrictions and requirements upon you when granting an order for a provisional license, including:

  • Carrying a certified copy of the order whenever you are driving.
  • Get alcohol dependence counseling from a state-approved facility. This counseling is considered separate from any mandatory DWI program you may be required to take for your probation.
  • Using an ignition interlock device to keep your vehicle from starting if you have been drinking. The judge has the option to make this a condition for your first offense, but it is required for a second and subsequent offenses.

Failing to adhere to any of these requirements is considered a Class B misdemeanor and is punishable by up to 60 days in jail, and will likely result in the suspension of the provisional license.

To learn more about a provisional license or to find the answers to any other questions regarding a DWI or other legal matter, contact us today.

Why Trial By Jury May Be a Better Choice Than a Judge

Grant M. Scheiner

Why Trial By Jury May Be a Better Choice Than a Judge

Posted on by Grant Scheiner

When involved in a legal case, many people wonder if they’re better off trying their case before a jury or a judge. And while there are always exceptions for particular cases, generally speaking as a defendant a trial by jury is usually a better choice than a judge (also known as a bench trial), one that is particularly preferred in Texas despite some declining numbers. The decision can be a complicated one, and certainly one to discuss at length with your legal representation. But to help you sort through the decision more for yourself, here are some things to keep in mind.

If you plan to go before a jury, keep these factors in mind:

  • When defendants elect a jury trial, the state often sends a more experienced prosecutor against you than if you were in front of a judge.
  • When dealing with a jury of 6 to 12 people, they are all drivers and may be impatient with someone with a DUI or a reckless driving defendant.
  • Jury trials tend to last longer than non-jury trials, thus raising legal costs.
  • Judges tend to be stricter on legal technicalities and procedures during a jury trial than a non-jury trial.

Alternatively, there are many good reasons to choose a jury trial:

  • Jurors may open to hearing your case if they themselves have felt victimized by the traffic court system. If your case is particularly convincing and appeals on an emotional level, you’re typically in better standing with a jury.
  • If you’re facing especially serious consequences from a guilty verdict such as losing your license or jail time, you are usually better to appeal to a jury of your peers who may be more sympathetic than a judge to your plight.
  • Given how time-consuming jury trials can be for all involved, the system has some incentive to settle your case without going to trial though a deal that may be more beneficial to you.
  • With a jury trial you (or your lawyer) only have to convince one person in the group that you are not guilty for you to win a case. Meanwhile a judge tends to be a tougher crowd, as they themselves have often been prosecutors in the past.

Again, each case is different, so it’s important to speak with your attorney to determine if trial by jury is the better choice for you than a judge. Obviously, there are no guarantees with either choice as any lawyer will tell you, but it’s important to know your options before making a choice.

Criminal Lawyer in Houston, Texas

Grant Scheiner is a criminal lawyer in Houston, Texas. Scheiner Law specializes in a variety of cases including DWI/DUI, sex offenses, sexual assault, drug related offenses, and more. To learn more about jury trials compared to trials with a judge, contact one of our legal experts at Scheiner Law Group today.

What Getting an Underage DUI in Houston Means

Grant M. Scheiner

What Getting an Underage DUI in Houston Means

Posted on by Grant Scheiner

If you are driving in the state of Texas and are under the age of 21, an officer who pulls you over and even so much as smells alcohol on your breath can charge you with underage DUI. Because it is against the law to drink under the age of 21, the state of Texas has zero tolerance for underage drinking and driving. Texas laws state that any minor who has “any detectable amount of alcohol in his/her system” while driving a motor vehicle can be charged with DUI.

If this happens to you, it is important that you take it seriously, as this charge can have long-lasting and serious effects on your life.

The Zero Tolerance Law in Texas Isn’t Set at Zero

What Getting an Underage DUI in Houston Means
The National Highway Systems Designation Act of 1995 mandated that all states set the limit at 0.02% blood alcohol concentration (BAC) levels for drivers under the age of 21 in order to receive Federal Aid Highway Funds. Some states decided to go even further and set the limit at 0.00%. However, Texas kept the 0.02% limit, which means that if you were charged in Texas with an underage DUI based on a 0.00% standard rather than 0.02%, it was not in line with state laws. If this is the case, you will need a good DUI attorney in Houston to fight these false charges for you.

Penalties for Underage DUI

Underage DUI in Texas is considered a Class C misdemeanor. While the arrest of a minor for this crime is similar to that of an adult, sentencing for a minor charged can be much different than for an adult. Its important to understand these differences and realize how crucial it is to hire an effective DUI attorney in Houston that has a great track record in DUI cases.

The penalties for an Underage DUI in Texas are slightly different than those for an adult. A driver under 21 years of age is legally considered a minor, which means you will not receive jail time and the penalties will not be as severe as those for an adult. However, the consequences are still severe and long-lasting. If convicted, the offense will remain on your record permanently, affecting your life for years to come, including the ability to acquire higher education, gainful employment, and professional licensing.

Penalties for underage DUI in Texas can include the following:
•    A fine of up to $500
•    Probation
•    Community service
•    Alcohol awareness classes
•    Suspended driver’s license for 30 days for a first offense
•    Suspended driver’s license for 60 days for a second offense
•    Suspended driver’s license for 180 days for a third offense
•    Permanent criminal offense on record

Keep in mind that other possible contributing factors, such as high BAC levels or injuries due to your actions, may affect what penalties you receive.

In addition to these penalties, you will be responsible to pay any fines, court costs, probation fees, and legal fees that are associated with your hearings and consequences.

What To Do if Charged with Underage DUI in Texas

Unfortunately, officers do make mistakes and sometimes file false charges. Sometimes the instruments that measure BAC fail and false readings are submitted. You certainly don’t want to get a charge on your permanent record that you don’t deserve. We at Scheiner Law Group can review your case and fight to keep your record clean, as well as restore your life to normal after a false underage DUI charge has been made against you.

If your charges are not the result of a false accusation or nonworking equipment, we still believe that you deserve a second chance. In some cases, young people who are otherwise upstanding citizens use bad judgment and get behind the wheel of a vehicle after a sip or two of an alcoholic beverage. Regardless of your situation, we will fight for you. Because a charge if Driving Under the Influence can become a permanent part of your record and can have long-term negative effects on your life, the attorneys at Scheiner Law would like the opportunity to defend you against all underage DUI charges and help you avoid the many negative consequences that may affect your otherwise bright future.

No matter the situation, you will want to have a competent Houston DUI lawyer going to bat for you. Give us a call today so we can begin our job of defending you and your future!

Texas DWI Cheat Sheet

Grant M. Scheiner

Texas DWI Cheat Sheet

Posted on by Grant Scheiner

Texas DWI Cheat Sheet

Houston is the fourth-largest city in the United States. There’s a near-limitless list of things to do in the metro area – and that includes bars, clubs and other drinking establishments. If you’re enjoying a night out on the town, it’s helpful to know the answer to the question: “How much is too much?”

Of course, it’s always a good idea to have a designated driver on hand. But sometimes you’re the driver, and you’ve already had a drink. Is it safe to drive home? Could you actually have another drink without significantly impairing your ability to operate a vehicle? These are valid questions, with potentially serious consequences. With that in mind, Scheiner Law Group, Houston’s premier criminal defense and DWI attorneys, offers this handy guide to set the record straight.

If you need help with a possible DWI case, ask for a lawyer. The Scheiner Law Group specializes in Houston DWIs and DUIs. We’ve successfully dismissed many would-be cases in Houston and the surrounding areas.

For more information, please visit the Scheiner Law Group’s web articles about your right of refusal and other tips & tricks.

Get Help Now:

Call (713) 807-9700 or visit scheinerlaw.com.

For emergencies and non-business hours, call or text DWI Attorney Grant Scheiner at (713) 581-4540.

Español: 281-995-3399

 

New Fifth Circuit Court of Appeals Case Upholds Cell Phone Tracking

Grant M. Scheiner

New Fifth Circuit Court of Appeals Case Upholds Cell Phone Tracking

Posted on by John Cavers

It’s often said that we live in an era of unprecedented technological advances. In no area is this more apparent than in the field of telecommunications. What a person can now do with say, an iPhone was simply unimaginable even just a few years ago.

The latest buzz is that Apple may soon introduce a feature in its iPhone that will allow users to unlock their phones and conduct transactions with just a fingerprint. If properly developed, this technology could yield huge advantages. But given the recent scandals with the NSA’s mining of data, these advances also have the potential of further undermining our sense of privacy.

To many, a new decision from the Fifth Circuit Court of Appeals is further proof that our civil liberties are eroding as the government’s power to monitor us is growing stronger. That decision held that law enforcement can obtain historical location data  – useful to law enforcement to collect data about a person’s daily movements and habits – from cell phone carriers without obtaining a search warrant.

In overturning US District Judge Lynn Hughes, the Court reasoned that “[a] cell subscriber like a telephone user, understands that his cellphone must send a signal to a nearby tower in order to wirelessly connect his call.” Because – according to the Court – a cell phone user understands the way phones transmit messages, and because he uses a phone voluntarily, he has a lower expectation of privacy, which works to exempt the government from the warrant requirement.

We disagree with this decision and are distressed to see this erosion of the Fourth Amendment’s power. Undoubtedly, this decision is contrary to what we a society would consider a “reasonable intrusion.” As Supreme Court Justice Sonya Sotomayor commented in a case involving GPS tracking, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

We hope to see statutes enacted to address this problem, a remedy the Fifth Circuit Court of Appeals anticipated: “We understand the cell phone users may reasonably want their location information to remain private… But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records… or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy.”

Is there a biological basis to crime?

Grant M. Scheiner

Is there a biological basis to crime?

Posted on by Jose Ceja

Recent advances in science may change the way we look at criminals and the underlying reasons for their behavior. Specifically, advances in neurology and brain scanning have revealed that because of brain function and chemistry, some people are far more likely to engage in criminal behavior. While researchers agree that there is still a strong social and environmental cause for criminal behavior, they argue that biology cannot be overlooked.

Recently on NPR, a researcher named Adrinane Raine discussed his work conducting brain imaging scans of convicted murderers. Raine found that in many murderers particularly those that killed impulsively there was far less activity in the brain’s frontal lobe. Raine says this is important because the frontal lobe is involved in planning, organizing and impulse control.

Raine also discussed other factors that can impact brain functioning and make a person more prone to crime. For example, he attributed the rise in violent crime in the 70s, 80s and 90s to lead in the environment when the criminals were young:

“In the ’70s, ’80s and ’90s, violence went up in America. What was causing that? Well, one hypothesis: It was the increase in environmental lead in the ’50s, ’60s and ’70s. You know, lead in gas, for example. So, in the 1950s, little toddlers were playing outside, putting their fingers in dirt, putting their fingers in their mouths and absorbing the lead. Twenty years later, they became the next generation of violent criminal offenders because violence peaks at about 19 or 20. Then what happens is in the 1990s violence begins to come down, as it’s been doing. What’s partly explaining that? The reduction in lead in the environment. In fact, if you map environmental lead levels over time like that and map it onto the change in violence over time, lead can explain 91 percent of those changes. And to me, it’s the only single cause that can both explain the precipitous rise in violence from the ’70s, ’80s and ’90s and also the drop that we’ve been experiencing.”

This field’s implications on the criminal justice system are still unknown. David Eagleman of Baylor College of Medicine has convincingly argued for customized sentencing and treatment based on a person’s brain chemistry and function.

Criminal Defense Attorney in Houston, Texas

Grant Scheiner is a criminal defense attorney in Houston, Texas, specializing in a variety of cases including DWI/DUI, sex crimes, sexual assault, drug related offenses, and more. Contact our law firm today to learn more about criminal law in Texas.

 

Resources:

Atlantic Monthly

NPR

Mandatory Blood Draws Limited in Texas Due to New Supreme Court of the United States Case

Grant M. Scheiner

Mandatory Blood Draws Limited in Texas Due to New Supreme Court of the United States Case

Posted on by Jose Ceja

A new United States Supreme Court ruling has probably rendered some Texas DWI laws unconstitutional and will have a big impact on the way DWI investigations are conducted in many cases. That case, Missouri v. McNeely, involved a DWI suspect who refused to provide a blood test. Blood was obtained anyway, and the police did not obtain a warrant prior to doing so, relying on the “exigent circumstances” exception to the rule that a warrant is required.

Earlier this month, the Supreme Court ruled that Missouri’s approach was contrary to the Constitution. While the case did not go so far as to say that the police must always get a warrant, the justices did say that there is no rule that allows the police to get blood in every DWI case without a warrant. Specifically, the majority opinion concluded that the fact that alcohol in the blood dissipates over time is not necessarily enough to create an “exigent circumstance.” The ruling will require that each case be judged on its own facts and from a law enforcement perspective, getting a warrant makes even more sense.

Several justices were understandably uncomfortable with the government having free-reign to subject citizens to the forced blood draws in every DWI case (Chief Justice Roberts referred to the “pretty scary image” of forced blood draws).

In Texas, several categories of DWIs or other intoxication offenses are subject to “mandatory” blood draws including cases where the Defendant has two prior convictions, or some cases where there is an accident involving injury. These provision of the Texas Transportation Code are now on shaky Constitutional ground, and the State will have to show exigency to justify these blood draws.

Interestingly, in Harris County and many other places, it is now easier than ever for the police to obtain search warrants to conduct mandatory blood draws. This is largely because of the expansion of the “no refusal” program has led to a very efficient infrastructure for obtaining warrants and has probably limited the situations where an “exigency” would actually require the taking of blood without a warrant.

-Jose Ceja

Miranda Warnings for Boston Marathon Bombing Suspect (And All of Us)

Grant M. Scheiner

Miranda Warnings for Boston Marathon Bombing Suspect (And All of Us)

Posted on by Grant Scheiner

Not long after Boston Marathon bombing suspect Dzhokhar Tsarnaev was taken into custody, the federal government announced it would not give the suspect “Miranda Warnings” before interrogating him. Withholding Miranda Warnings from a criminal suspect is a clear mistake. The so-called “public safety exception” to Miranda is rare, and it doesn’t apply to the case of the suspected Boston Marathon bomber.

First a little history and perspective. In 1966, the United States Supreme Court held that a criminal suspect in police custody must be given certain rights or “warnings,” before police agents may interrogate the suspect. Miranda v. Arizona, 384 U.S. 436 (1966). These rights include the right to remain silent, and that anything the suspect says may be used against him in court; the right to consult with an attorney prior to and during any questioning; and, if the suspect cannot afford an attorney, the right to a court-appointed lawyer free of charge. Since 1966, Miranda has been the law of the land in all 50 states, with some states (including Texas) codifying these rights and even expanding them slightly. Now, when a suspect is in custody but not “Mirandized” before police interrogation, the answers the suspect gives are generally not admissible in court.

In 1984, the United States Supreme Court carved out a “public safety” exception to Miranda in New York v. Quarles, 467 U.S. 649. The Court called it a “narrow exception to the Miranda rule” and predicted that police officers “can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.” Id. at 658-59. Quarles involved a suspect who allegedly raped a woman at gunpoint. When a police officer located Quarles and took him into custody, the officer discovered the suspect was wearing an empty gun holster. The officer asked where the gun was and the suspect nodded toward some empty cartons and responded, “the gun is over there.”

The Supreme Court in Quarles recognized that an immediate threat to officer safety can at times outweigh a suspect’s right for Miranda Warnings before questioning. However, in the case of the suspected Boston Marathon bomber, (who was taken into custody and immediately hospitalized in serious condition), there was no immediate threat to officer safety or public safety. Law enforcement authorities publicly announced there were only two suspects — one killed in a police shootout and the other wounded and taken into custody. The police had no information to suspect additional bombs posed an immediate threat to anyone. In fact, the town of Watertown, Massachusetts had been on lockdown until the suspect was captured. Then law enforcement authorities and public officials told citizens it was safe to return to the streets and their daily lives. If the primary argument for withholding Miranda Warnings to the suspected Boston Marathon bomber is that he “might” have information about additional bombs or bomb plots, then the public safety exception could be arguably stretched to include a possible danger in every, single type of case involving explosives, guns, threats or violence. It would be a classic case of an exception swallowing up the entire rule.

Miranda Warnings and constitutional rights are not minor inconveniences to be circumvented when a suspect is particularly hated or when police agents really-really want a suspect to talk. Constitutional rights are cornerstones of American democracy. They are what make our country superior to nations that don’t have constitutional protections for their own citizens. We either believe in our constitutional rights, or we don’t. I believe in our Constitution and I cannot imagine I am alone in that belief.

Houston Criminal Defense Lawyer

Grant Scheiner is a Houston criminal defense lawyer. Scheiner Law Group specializes in a variety of cases including drunk driving, sex crime defense, sexual assault, drug related offenses, Federal criminal defense, and more. If you have questions about Miranda warnings or criminal law in Texas, contact our law firm today.

All I Want For Christmas Is a Little Honesty

Grant M. Scheiner

All I Want For Christmas Is a Little Honesty

Posted on by Grant Scheiner

The holiday season is in full swing, and so is Texas DWI enforcement. Police agencies throughout the state are beefing up DWI patrols. DWI defense attorneys in Houston and everywhere agree on one thing: the best way to avoid picking up a DWI is to avoid being behind the wheel if you’ve had too much to drink.

The Department of Public Safety and other government agencies are trying novel ways to discourage drinking and driving. This year, DPS launched a new website as a part of its “Choose Your Ride” campaign and a Santa-themed DWI Facebook page. Even some local law enforcement agencies are trying new ways to get their message out. Last week, an NPR affiliate in Arlington reported that the Arlington Police will have live “Tweets” from DWI arrests.

We welcome these creative approaches to discourage drinking and driving in Texas. But the problem with these approaches is that they are far too often dishonest and closer to propaganda than accurate information. If you were unfamiliar with the laws of Texas and you saw these pages or followed the Arlington Police’s Tweets you would almost certainly believe that drinking and driving is illegal. Of course, this is not true. You don’t have to be a criminal defense lawyer to know that it Texas, you are guilty of DWI only when your blood alcohol content is above a 0.08 or you lose the “normal” use of your mental or physical faculties (what “normal” means in this context, God only knows, but that is a subject for another blog post).

For example, DPS website employs the catchy phrase “Drink. Drive. Go to Jail.” when that is clearly not the law. This is a problem and I believe we are not nitpicking when we take issue with this. When people are misinformed as to the law, they will eventually believe it. What would happen the next time they sat on a jury? Would they be able to render a fair verdict? What about police officers? Will the goal of keeping drunks off the road outweigh the rights of the individual? Will an officer fed a steady diet of blatantly wrong catchphrases err on the side of making a DWI arrest? These are genuine concerns. While we believe the goal of keeping our roads safe is an admirable one, we ask that our government honestly instruct its citizens as to its rights, and what the law really says.

Experienced Criminal Defense Lawyer in Houston, Texas

Grant Scheiner is an experienced criminal defense lawyer in Houston, Texas. Scheiner Law specializes in a variety of cases including DWI/DUI, sex offenses, sexual assault, child sexual abuse, indecency with a child, child pornography, drug related offenses, federal criminal defense, money laundering, and more. To learn more about DWI enforcement in Houston, contact one of our legal experts at Scheiner Law Group today.

DPS Offers Driver’s License Information Website

Grant M. Scheiner

DPS Offers Driver’s License Information Website

Posted on by Grant Scheiner

If you are unsure about the status of your Texas Driver’s license, the Department of Public Safety has launched a website which will allow you to check your current status. Additionally, the website allows users to pay fees charged for suspension offenses, and lists any outstanding compliance items that need to be completed before driving eligibility is restored. The website can be accessed here:

https://txapps.texas.gov/txapp/txdps/dlreinstatement/login.do