11 August

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Texas ALR: Administrative License Suspension Injustice

Name: The Coffey Firm
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Posted by Mimi Coffey

in Helpful Legal Information

Here is some Texas ALR Administrative License Suspension Injustice:

DPS can suspend a license for refusing to give breath or blood

There is a grave injustice in punishing someone for exercising the right to refuse. This is what Texas calls its “implied consent” law for Texas ALR license suspensions. Under this law, Texas says a person is deemed to have consented to “the taking of one or more specimens of [their] breath or blood” after an arrest for DWI, DUI, or BWI. In other words, a refusal means absolutely nothing other than the length of suspension DPS issues. The statute does have a bit of a saving grace, though. The statute states that a person may consent to the taking of any other type of specimen. In other words, if the officer asks for blood, the person can say “no, but I will give breath” to the officer.

You can get a Texas ALR suspension for refusal EVEN IF you are completely sober

When it comes to a Texas ALR hearing for a ‘refusal’ case, there are 4 main issues:

Whether the officer had reasonable suspicion to make the stop (or be on scene);
Whether the officer had probable cause to believe a person is driving while intoxicated;
If the officer made a request for breath or blood upon arrest; and
Whether the person refused that request.

There is one notable absence: Whether the person was, in fact, intoxicated. Unlike with a hearing based on consent, a Texas ALR refusal hearing focuses solely upon the issues above. This means that even a toxicology result that shows no alcohol or other drugs means nothing to the administrative judge. The statute does not “require or empower the ALJ to decide the ultimate issue of whether [the person was] actually [driving] while intoxicated” according to Church v. State and Texas Department of Public Safety v. Butler. The statute requires only that the ALJ decide “whether probable cause exists to believe . . . [the person was driving] while intoxicated”.

In essence, an officer may arrest a person for Texas DWI if he has enough “evidence” to show intoxication. On top of the normal “indicators” such as odor of alcohol and watery eyes, officers will use the unscientific SFSTs to test for impairment. Heck, they will even use statements like “I can’t even do that when sober” against people!

These are some examples of how Texas ALRs are a complete injustice despite being “due process” before DPS suspends a person’s license. This is why, as hard as an ALR attorney works, the ALR hearings will almost always end in DPS’ favor. Further, with the complete injustice of revoking CDL privileges for a year (or life), ALR suspensions poorly serve our community.

More about Mimi Coffey

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), Theft and Possession charges.

Mimi is also listed on several “top” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, DWI Lawyer Dallas County, DWI Lawyer Collin County, DWI Lawyer in Johnson County and DWI Lawyer Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

07 August

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Texas DWI & DUI: What’s The Difference?

Posted by Mimi Coffey

in Helpful Legal Information

Many people tend to use the terms DUI and DWI interchangeably. However, in Texas, the two can be quite different in practice.

Texas DUI vs. Texas DWI

DUI is the term usually used when the arrest involves a minor (someone below 21 years old). Meanwhile, DWI is the term used for the more severe charge. Here’s the kicker, though: The police can still charge a minor with a full-on Texas DWI.

The Texas Alcoholic Beverage Code contains the statutes regarding DUI by a minor. Section 106.041 of that Code states:

(a) a minor commits an offense if the minor operates a motor vehicle in a public place . . . while having any detectable amount of alcohol in the minor’s system.

(b) . . . an offense under this section is a Class C Misdemeanor [same level as most, if not all, traffic tickets].

. . . (g) an offense under this section is not a lesser included offense [of DWI]

To summarize, the police may arrest a minor if the minor has ANY amount of alcohol in her system. This can be a problem because, as people with interlock or SCRAM may know, even NyQuil can register as ‘alcohol’ in a person’s system. Further, DWIs are not eligible for reduction to DUI just because it involves a minor, which is an ABSURD rule.

The Texas Penal Code defines Texas DWI as:

(a) a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

(b) . . . an offense under this section is a Class B Misdemeanor [for a first time offense].

A DUI is nearly the same as a DWI except for the additional/different elements of (1) “any detectable amount” instead of intoxicated, and (2) only applying to minors. That is the reason they won’t consider a DUI a “lesser included offense”! Because the “lesser” offense would have MORE elements! This wouldn’t be so bad if police could only arrest minors for DUI. But, police may unfairly arrest minors for full-scale DWIs.

License suspensions for DUI (for minors)

There is a small positive, however. If a minor consents to breath or blood (or if there is other proof of presence of alcohol (e.g., open container)), the minimum suspension is 60 days. Future suspensions (assuming consent) are 120 days (2nd offense) and 180 days (3rd+ offense). Keep in mind a DWI conviction will count as a “first” offense.

The positive comes with a negative, though. If a minor refuses to give breath or blood, the minor faces the exact same suspension as an adult. This means 180 days for a first offense and up to 2 years for a second (or more) offense.

A Texas DUI’s effect on a Texas DWI & DUI

Luckily, a DUI you get as a minor does not enhance a Texas DWI you get as an adult. In other words, if you get a DUI when you are 16 and just learning to drive, that will not have any major effect on a DWI you get when you are 30. If there is an effect, it would likely only be something (relatively) minor like taking a slightly different Texas DWI education program.

More about Mimi Coffey

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), Theft and Possession charges.

Mimi is also listed on several “top” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, DWI attorney Dallas County, DWI Lawyer Collin County and DWI Lawyer Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

29 July

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Know Your Rights: “What About My Miranda Rights?”

Posted by Mimi Coffey

in Helpful Legal Information

The police did not read my rights at the scene! Can they dismiss the case?!

The answer is a confusing “yes and no”. The Miranda warnings are somewhat popular due to inclusion in many television police dramas. What many may not know is that there is no specific language for the warnings. However, the warnings must, using whatever language convey 4 basic warnings:

The right to remain silent;
That anything the person says may be used against them; (Note that it “may”, not “will” be. The rules of evidence prevent some statements from admission.)
The right to an attorney before and during any questioning; (more on this later) and
The right to have an attorney appointed if the person cannot afford one. (However, proving indigence can be very difficult to satisfy this right).

Miranda Warnings can be confusing

Another myth popularized by some police dramas is that the law requires the warnings for simple information gathering. This is simply not true. The law only requires reading the warnings during “custody” or “interrogation” of a person (typically called “custodial interrogation”). In some situations, this may mean after the police place you under arrest. However, an “arrest” is not a “custodial interrogation” unless the officer starts to ask specific questions. If the officer is only talking while transporting you to the jail, you are not “interrogated”. Only if the officer is asking questions specifically designed to gather information about the crime is it an “interrogation” to trigger the rights.

As another confusing point, you must EXPRESSLY invoke these rights. That means if you want to invoke the right to remain silent, you must specifically say “I am going to remain silent” to the officer. In some cases, simply remaining silent can be enough. But, courts state that simply remaining silent is “ambiguous” and sometimes allow admission of statements made before invoking or waiving the right.

Miranda Warnings and Probation

There are many other specific examples of what we will call “loopholes” for the rights. Exploring every single aspect of the Miranda rights would take far too long for a casual reader (and in fact the Constitutional Rights associated with these warnings are the main subject of a semester-long Criminal Procedure course for law students)! One exception to know is that the warnings DO NOT APPLY to probation revocation proceedings because the evidence is not used to give extra punishment. Even if the rights did apply, in many cases the conditions of probation will specifically state that you may not refuse ANY lawful request by police. This means that if the officer (lawfully) asks for a blood draw, you must do it.

Consent to Search

Though not included in the rights discussed above, you have the right to refuse a request for the police to search you or your car (mostly). If police stop you for speeding and ask to search your car, for example, you can refuse the request. Once you refuse the request, the police will (usually) need to get a warrant for the search. Police may, however, search your car without a warrant under “exigent circumstances,” such as a search incident to arrest.

If police arrest you on suspicion of DWI, for example, they may search you and parts of your car without a warrant (usually on the premise of “officer safety”). In this case, police may search the driver’s side and, probably, the passenger compartment because it was in the area of your “control”. Police would usually not be able to search the trunk of your car because it is not related to the offense of DWI. If the police arrest you for a drug crime, however, the search may be larger to determine the amount in the car (to determine simple possession or intent to deliver).

What is not a stop and/or search?

When the officer approaches you and asks you questions, it is not a “stop” since you are free to leave or refuse to answer the questions. If the officer tells you that you may not leave, that is when the encounter becomes a stop. There are similar rules about searches. After a stop, an officer asking you to show license and registration is not a “search”. When an officer makes a lawful request for license and registration, you MUST comply with that request.

You must show your driver’s license (including CHL), registration, and proof of insurance. After that, however, you are generally free to refuse to perform any SFSTs or give breath/blood. In essence, you always have the right to refuse a test. If you refuse to give breath or blood, police must get a warrant to take your blood. Even though alcohol dissipates from the body quickly, that is not enough of an “exigent circumstance” for a warrant-less search.

How long can the police stop me?

If the police stop you for a traffic violation, the officer’s actions must be reasonably related to the circumstances justifying the initial stop. The stop may last no longer than necessary to address the traffic violation. The stop ends when tasks related to addressing the violation end (including checking license, registration, insurance, and outstanding warrants). Here is the BIG exception: If the police get reasonable suspicion of other activity, they can extend the stop to confirm or dispel the suspicion. Reasonable suspicion is hard to define, but is basically if the officer “reasonably” believes you are, were, or will be committing a crime.

For example, police may not request a drug dog to search a car to investigate a simple traffic violation. However, they may request one if, for example, they observe behavior that gives the officer reasonable suspicion of drug-related crime. In any case, the extra time has to be related to the reason for the stop. There is no specific amount of time that is “reasonable”. One innocent example is if the license or warrant check-up system is slow. Since those checks are related to the stop, a slow check that takes 15 minutes is still “reasonable”.

Right to an Attorney

Always, ALWAYS request an attorney be present before answering any questions. Make the request multiple times. Multiple specific requests for a lawyer can be suppressed at trial since repeated requests for an attorney can lead a jury to unfairly infer guilt. The evidentiary language is “the probative value is substantially outweighed by the risk of unfair prejudice”.

More about Mimi Coffey

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), Theft, and Possession charges.

Mimi is also listed on several “top” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, DWI attorney Dallas County, DWI attorneys Collin County and DWI attorneys Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

27 July

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Texas DWI Deportation Warning

Posted by Mimi Coffey

in Helpful Legal Information

No more “three strikes” law for deportation

Almost everyone knows one of the basic rules of baseball is “Three strikes, you’re out”! For the longest time, Texas DWI deportation (and some other areas of the law) operated on the same premise. A person is not subject to deportation until their third “strike” (meaning their first felony DWI). Unknown to most of us, this has started changing in the shadows. Immigration has now started to deport people for a second DWI conviction instead of waiting for a third. There does not seem to be any clear rhyme or reason to this change. But, it is a change that may affect many people in the DFW area. Even worse, you may not know about the deportation until your DWI probation is over! Just imagine doing everything the State and the Court told you to do just to finish probation and have the police deport you.

There is one huge exception to this rule, which goes back to when the law operated under the “three strikes” premise. ANY conviction for a drug-based Texas DWI (any drug aside from alcohol, including prescription medication) is an AUTOMATIC deportation. If you are searching for a “DWI lawyer near me”, know that Mimi handles most of North Texas, including the following counties: Tarrant, Collin, Dallas, Denton, Grey, Hood, Wise, Johnson, and Parker. As part of representing you on your case, Mimi will conduct a full case evaluation and discuss whether your immigration or residency status may be at risk.

Even if you are not subject to deportation, there are other consequences of a Texas DWI. For example, a single DWI can affect your ability to obtain permanent resident status in the United States.

Texas Code of Criminal Procedure Article 26.13 requires courts to “admonish” a defendant of the consequences of a guilty plea. These admonishments include the possibility of deportation. Unfortunately, courts need only admonish on the possibility of deportation, not state that the defendant will, in fact, face deportation.

More about Mimi Coffey

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), Theft, and Possession charges.

Mimi is also listed on several “best” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, DWI attorney Dallas County, DWI attorneys Collin County and DWI attorneys Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

21 July

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Texas Firearm License to Carry WARNING

Posted by Mimi Coffey

in Helpful Legal Information

Mimi Coffey DWI Lawyer, Texas DWI, Texas ALR, Texas License Suspension, Texas UCW, Texas LTC THIS IS AN IMPORTANT WARNING for those who currently have a license to carry a handgun!!

Many Texans need a license to carry so they can have some form of personal protection. This is especially true for those who need to travel extensively for work and want to prepare for unexpected situations. However, the law allows Texas DPS to take away (revoke) or suspend a license to carry in certain circumstances. Many LTC holders understand that a criminal conviction is one of those situations and will reluctantly agree to the suspension.

There is one major problem. Texas DPS can suspend your License To Carry BEFORE there is a conviction. The law allows Texas DPS to suspend your license “until the dismissal of the charges” if you have a pending Class A or B misdemeanor or a felony. The upside is that a pending Class C, like a speeding ticket, should not cause and LTC suspension by DPS. If you have an LTC and are looking for a “criminal lawyer near me”, know that Mimi handles most of North Texas.

License to Carry Suspension

Texas Government Code § 411.187 covers suspension of an LTC. Subsection (a)(1) of that statute states:

The department shall suspend a [license to carry] if the license holder:

is charged with the commission of a Class A or B misdemeanor or equivalent offense, or of [Disorderly Conduct], or of a felony under information or indictment.

Notice the statute uses the word “charged” rather than “convicted” of the offense. This means that if, for example, the police arrest you for DWI (Class A/B misdemeanor), DPS “shall” suspend your LTC. While some people may fall through the cracks, once the state files charges you should expect a notice of suspension for your LTC in the mail.

Subsection (c) of § 411.187 allows the suspension to last until “dismissal of the charges,” which, especially with COVID delays, can be a very long time. A dismissal can mean many different things, from pure dismissal to a conviction. Once a conviction occurs, however, the suspension turns into a revocation.

Texas Government Code § 411.186 covers LTC revocations. DPS “shall” revoke an LTC if a holder “subsequently becomes ineligible” or receives a conviction for UCW. You become ineligible if you have a Class A or B conviction within 5 years or if you have ANY felony conviction (regardless of when it occurred). After a revocation, you may re-apply for an LTC 2 years after the cause of ineligibility (the conviction) ends. This means that you must wait 7 years after a misdemeanor conviction to re-apply for an LTC.

Extra note about Family Violence

An affirmative finding of family violence is usually an absolute bar to eligibility to own a firearm. However, when it comes to Protective Orders, even an agreed Protective Order with no affirmative family violence finding can mean an absolute bar to gun ownership.

More about Mimi Coffey

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), Theft, and Possession charges.

12 June

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Texas Family Violence Charges: Enhancement for Family Violence

Posted by Mimi Coffey

in Helpful Legal Information

Mimi Coffey DWI Lawyer, Texas Family Violence, Texas Assault

Some people get their family violence charge reduced to a class C assault ticket. While the reduction probably felt good at the time, WATCH OUT! Even if the court orders deferred adjudication for the ticket, THEY CAN STILL USE IT TO ENHANCE A FUTURE CHARGE. Similar to the Fake DWI Deferred Adjudication, even placement on deferred adjudication for an assault counts as a “conviction” under the law. That is why it important to know all your options before deciding what you want to do with your case. While a plea may seem like a quicker and easier route, trial may be your BEST option. Our job as attorneys is to explain your options after reviewing your evidence. Here at The Coffey Firm, Mimi reviews all evidence with clients prior to them making any decisions on their case.

Beware Of The Family Violence Enhancement

Normally, a family violence charge is a Class A Misdemeanor. The law allows “enhancement” to a third-degree felony if you have a prior family violence “conviction” on your record. Section 22.01 of the Texas Penal Code states this:

(b) An offense under Subsection (a)(1) (intentionally, knowingly, or recklessly causing bodily injury to another) is a Class A Misdemeanor, except that the offense is a felony of the third degree if the person commits the offense is against:

(2) a person whose relationship to or association with the defendant is [defined in the Family Code], if:
- (A) [The State shows] on the trial of the offense that the defendant has a previous conviction for an offense under this chapter . . . against [a family member]

Pay close attention to the “an offense under this chapter” language. This means that ANY OFFENSE under the assault statute can come back to bite. You are not safe just because the court placed you on deferred adjudication for the assault either. Subsection (f) of Texas Penal Code 22.01 states:

(f) For the purposes of Subsection (b)(2)(A) . . .

a defendant has [a previous conviction for] an offense listed in those subsections committed against a [family member] if the defendant [received a guilty verdict] for the offense or entered a plea of guilty or [no contest] in return for a grant of deferred adjudication, regardless of whether [defendant served the sentence or received probation] and the defendant [received a discharge] from community supervision . . .

In short, a deferred Class C assault CAN raise any future assault to a third degree felony.

Who Is A Family Member?

The definition of a “family member” for family violence purposes is defined by Sections 71.0021(b) , 71.003 , or 71.005, of the Texas Family Code.

Section 71.0021(b): For purposes of this title, “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:

(1) the length of the relationship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the persons involved in the relationship

Section 71.003: “Family” includes . . . individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.

Section 71.005: “Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.

Prior “Bad Act” and Family Violence

Normally, the State cannot use a prior “bad act” against you to prove your “character” for the offense. Texas Rule of Evidence 404(b). There are exceptions for if the prior “bad act” resulted in a conviction. Otherwise, a simple bad act is not admissible. However, there are certain ‘reasons’ that allow for admission of a prior act. This includes demonstrating motive, intent, lack of accident, knowledge, or identity. For example, think of a police drama on television where they discuss the suspect’s ‘MO’. This is information that the state might admit to establish the suspect’s likely involvement in the current crime.

For Family Violence cases, there is an additional rule set out in the Texas Code of Criminal Procedure. Article 38.371 of that code allows the state to use a prior “bad act” to prove the nature of the relationship between you and the alleged victim. For example, a claim that alleged Family Violence victim and you had a “good relationship”. Such a claim may lead the state to offer prior “bad acts” to rebut that claim. Regardless, the evidence must also satisfy the Rules of Evidence (including 404(b) above).

More about Mimi Coffey

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), Theft, and Possession charges.

11 June

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Texas Expunctions & “Criminal Episodes”

Posted by Mimi Coffey

in Helpful Legal Information

Mimi Coffey DWI Lawyer, Texas DWI, Texas Nondisclosure, Texas Expunction

Expunction

Getting an expunction in Texas is a way for people to legally eliminate information about their criminal records, including arrests. Obtaining an Expunction can be difficult. They become much more complex if you face multiple charges. To obtain an expunction, there are certain requirements that you must meet. However, you may be ineligible on a charge depending on the circumstances surrounding your arrest. If you are looking for an “expunction lawyer near me”, contact our office. We will discuss your eligibility for an expunction.

Texas Code of Criminal Procedure § 55.01 deals with expunctions. Specifically, subsection (c) states, in essence, that a court may not expunge one charge if the person has a pending or past conviction for another offense from the same “criminal episode.” Section 3.01 of the Texas Penal Code defines a “criminal episode” as:

A commission of two or more offenses, regardless of whether the actor directs or inflicts the harm on more than one person or item of property, under the following circumstances:
- the offenses are committed pursuant to [transactions] that are connected or constitute a common scheme or plan; or
- the offenses are the repeated commission of the same or similar offenses.

Here is where the law gets more ridiculous. Look at the “same or similar offenses” language above. Courts interpret the “same or similar offenses” language as saying a second DWI is NOT eligible for expunction. According to those courts, a DWI 2 is a “similar” offense to a first-time DWI. So, even a “not guilty” is not enough.

In short:

You cannot have the court expunge a dismissed charged if there is a “companion” case
You cannot expunge a second-time offense because it is a “similar” offense.

More about Mimi Coffey

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), Theft, and Possession charges.

04 June

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The Importance of Your DWI Video

Posted by Mimi Coffey

in Helpful Legal Information

police use body cameras for DWI video Many people arrested for DWI are not aware they they have the right to request video footage of their arrest. Before September 1, 2015, DWI arrestees did not have that right. That changed with the 84th Texas Legislative Session when Charlie Geren (the representative for District 99 (Fort Worth)) introduced House Bill 3791 (HB3791) on March 13, 2015. The bill passed the Texas House on May 5, 2015, and passed the Texas Senate on May 27, 2015. Governor Abbott signed it into law on June 19, 2015. What you may not know is that Mimi was the criminal defense lawyer fighting for this law. In fact, Mimi worked hand-in-hand with Charlie Geren to introduce this law!

Will by DWI Lawyer go over the video with me?

There are a few advantages to requesting one’s own DWI video. However, most people would not know what to look for even if they had the video. Mimi has 25 years of DWI Defense experience. She knows many of the problems that appear on the video are sometimes conveniently left out of the officer’s reports. Mimi always conducts a full case evaluation with you to go over many of these potential problems.

The DWI Video provides a glimpse of the officer’s perspective of the event. Whether the officer had justification is a matter for Mimi to discuss with you. Mimi will also go over what the officer looks for during roadside examinations (e.g., the eye test). Mimi will go over what the officer may have seen when making his arrest decision. But, watching the video can help refresh your memory of the event or even correct a misunderstanding. For example, you may remember that the officer took blood and nothing else, while the video may show you refusing to a breath/blood test (which can have HUGE consequences on your ALR Hearing).

What does the law say about my DWI Video?

Article 2.1396 (formerly 2.139 before the 2017 legislative session) of the Texas Code of Criminal Procedure states:

A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of:

the DWI stop;
the DWI arrest;
the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or
a procedure in which a specimen of the person’s breath or blood is taken.

Basically, the statute says that you may request any video of everything from the stop to the blood draw (and anything happening after the draw if part of the same video).

More about Mimi Coffey

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), Theft, and Possession charges.

Mimi is also listed on several “top” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, Dallas DWI Lawyer, DWI attorneys Collin County and DWI attorneys Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

02 June

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Texas Unlawful Possession of a Firearm & Unlawful Carrying Weapon (UCW)

Posted by Mimi Coffey

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Mimi Coffey DWI Lawyer, Texas UCW, Texas LTC, Texas CHL, unlawful carrying weapon, best criminal lawyer, top criminal lawyers near me, unlawful possession of a firearm Unlawful Carrying Weapon and DWI sometimes go hand-in-hand. Mimi is used to seeing UCW charges added onto DWIs. She is also familiar with fighting agains Unlawful Possession of a Firearm charges. Mimi is well-known as one of the most knowledgeable criminal lawyers on the subject of DWI. This is because she is board-certified in DWI by the NCDD. If you are looking for a “criminal lawyer near me”, know that she handles most all of North Texas.

What is Unlawful Possession of a Firearm?

Unlawful Possession of Firearms occurs when a person possesses a firearm a certain amount of time after a criminal conviction.

Texas Penal Code § 46.04 defines the offense of Unlawful Possession of a Firearm:

(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:

after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
after the period described by Subdivision (1), at any location other than the premises at which the person lives.

(b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person’s family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of:

the date of the person’s release from confinement following conviction of the misdemeanor; or
the date of the person’s release from community supervision following conviction of the misdemeanor.

My job requires me to travel to high-crime areas. When am I allowed to have a gun?

As subsection (a) says above about Unlawful Possession of a Firearm, the normal time period is 5 years after release from confinement, probation, or parole. It also says whichever date is later. This means that you may need to wait extra time if, for example, you have parole after release from confinement. Section (2) does provide a bit of a safe zone, however. That section issues a penalty if one possesses the gun outside of their home, meaning you may still be able to keep a gun in their home for protection. Unfortunately, this means you likely risk punishment by owning a gun even for personal security outside your home. Contact us to make sure you are not at risk of Unlawful Possession.

What is the penalty for an Unlawful Possession of a Firearm charge?

Texas Penal Code § 46.04(e) establishes the base penalty for Unlawful Possession of a Firearm:

An offense under subsection (a) is a third (3rd) degree felony. An offense under subsection (b) is a Class A misdemeanor.

In other words, if your misdemeanor involved a family member, then the possession will also be a class A misdemeanor.

A felony (regardless of family violence) means the unlawful possession charge will also be a felony.

What is Unlawful Carrying Weapon (UCW)?

If you own a handgun, you might also have a UCW charge depending on the circumstances of your arrest. Normally, a UCW occurs when a person carries a handgun outside of their home or car. However, a weapon in plain view while in their car is a UCW. One common UCW scenario is when you may not possess a handgun by law (such as Unlawful Possession). Another common circumstance occurs when you possess the handgun while “engaged in criminal activity”. It is important to note that possession, not use, is the test. In other words, police may charge you with UCW if they find a handgun in your car after a DWI (unless the search is illegal, which is a separate issue).

Texas Penal Code § 46.02 defines the offense of UCW:

(a) A person commits an offense if the person:

intentionally, knowingly, or recklessly carries on or about his or her person a handgun; and
is not:
1. on the person’s own premises or premises under the person’s control; or
2. inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person’s control at any time in which:

the handgun is in plain view, unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster; or
the person is:
1. engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;
2. prohibited by law from possessing a firearm; or
3. a member of a criminal street gang, as defined by Section 71.01

What is the penalty for a UCW arrest?

In general, a UCW charge is a Class A misdemeanor. The law raises UCW to a third (3rd) degree felony if committed on any premises licensed or issued a permit to sell alcohol (even if the defendant owns the premises).

Texas Penal Code § 46.02(b) and (c):

(b) Except as provided by Subsection (c) or (d), an offense under this section is a Class A misdemeanor.

(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

What is the status of my License to Carry (LTC) after my Unlawful Possession of a Firearm?

Whenever you face Class A or B misdemeanor charge or felony charge, Texas DPS will suspend your License to Carry a handgun. That suspension lasts until dismissal of the charges.

Texas Government Code § 411.187(a)(1) and (c)(3):

(a) The department shall suspend a license under this section if the license holder:

is charged with the commission of a Class A or Class B misdemeanor or equivalent offense . . . or of a felony under an information or indictment . . .

. . .(3) until dismissal of the charges, if the person’s license is subject to suspension for the reason listed in Subsection (a)(1) . . .

What is the difference between a suspension and a revocation?

The key point to remember is that a suspension is different than a revocation. For example, if the court dismisses a misdemeanor or felony charge, you can get your license back immediately. However, a criminal conviction means that you are ineligible to re-apply for a LTC for a specific time period.

Texas Government Code § 411.186 (a)(3):

(a) the department shall revoke a license under this section if the license holder:

. . . (3) subsequently becomes ineligible for a license under Section 411.172, unless the sole basis for the ineligibility [is a pending charge that is grounds for suspension under Section 411.187].

When can DPS revoke my LTC after Unlawful Possession of a Firearm?

As mentioned above, DPS will suspend your LTC if you “subsequently become ineligible” to hold the license.

Texas Government Code § 411.172 defines eligibility to possess an LTC:

(a) a person is eligible for a license to carry a handgun if the person:

. . .(4) is not charged with the commission of a Class A or Class B misdemeanor . . . or of a felony under an information or indictment; [meaning you cannot apply if you do not already possess an LTC, but is grounds for suspension for current holders].

. . . (6) is not a chemically dependent person;

. . . (8) has not, in the five years preceding the date of application, been convicted of a Class A or Class B misdemeanor or equivalent offense . . .;

What is a “chemically dependent person”?

Texas Government Code § 411.171(2) defines a “chemically dependent person”:

(2) “Chemically dependent person” means a person who frequently or repeatedly becomes intoxicated by excessive indulgence in alcohol or uses controlled substances or dangerous drugs so as to acquire a fixed habit and an involuntary tendency to become intoxicated or use those substances as often as the opportunity is presented.

Texas Government Code § 411.172(c) defines how to determine a “chemically dependent person”:

(c) An individual who has been convicted two times within the 10-year period preceding the date on which the person applies for a license of a . . . Class B misdemeanor or greater that involves the use of alcohol or a controlled substance as a statutory element . . . is a chemically dependent person . . .

When will I be eligible to re-apply for my LTC?

After a license revocation, you may re-apply for an LTC 2 years AFTER the revocation if the cause of the revocation does not exist on the date of the second anniversary. If the cause of revocation still exists at that time, you may only reapply 2 years AFTER the revocation stops existing. Texas Government Code § 411.186(c).

In other words, because you are ineligible to hold a license if you have a misdemeanor conviction within the 5 years before application, you would be ineligible to reapply for 7 years after a misdemeanor conviction. Contact us if you are unsure about your LTC status.

I have a felony conviction. When can I have a license to carry (LTC)?

Texas Government Code § 411.172(3)

. . .(3) has not been convicted of a felony.

Because you must wait 2 years after the cause for the revocation ceases to exist, you are absolutely ineligible to apply for an LTC if you have a SINGLE felony conviction on your record. This is because, unlike with misdemeanors, there is no “5 year” limit. A felony is an absolute bar to applying for an LTC. This is a bit of an oddity because, as seen above, the unlawful possession statute still allows a felon to own a gun after a certain time period. In other words, a felon might be able to own a gun, but not to apply for an LTC.

Can I get my gun back after police take it?

That is a very complication question and the subject of our other post regarding Texas UCW: Getting a Seized Weapon Back.

More about Mimi Coffey & The Coffey Firm

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to get a DWI off your record or avoid probation revocation.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, DWI attorney Dallas County, DWI attorneys Collin County and DWI attorneys Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

29 May

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DWI Interlock Devices and Exceptions

Posted by Mimi Coffey

in Helpful Legal Information

Hate having an interlock? Want to get it off?

Courts may, and sometimes must, require you to install an interlock in your car. This device, in simple terms, is a breathalyzer that you must use to start you car. Some interlocks will also take a picture when you blow into it to make sure it is you (or a technician). If someone else blows for you, you may be at risk for DWI probation revocation or DWI bond revocation. This post aims to explain when courts may order you to install an interlock, and some of the exceptions to the rule.

EXCEPTIONS TO AN DWI INTERLOCK REQUIREMENT

Even if the court requires you to install an interlock and ONLY drive vehicles with an interlock installed, there is one important employment-based exception.

If you need to drive for work (e.g., a car dealership), then you may be able to drive without an interlock. This exception applies for any interlock restriction (condition of suspension or DWI probation, for example). For this exception to apply:

The employer must own the vehicle,
Must have notification of the interlock restriction, and
The notification must be with the vehicle.

This exception does not apply if you own or control the business that owns the vehicle. In other words, you cannot claim this exception if you are self-employed.

DWI Interlock and ALR Suspensions

After a an administrative license suspension (resulting from an ALR), the court may require proof that you install an interlock on your vehicle before they will grant a petition for an Occupational Driver’s License (ODL). Courts tend to require an interlock for a civil license suspension when you have a driving history involving multiple DWIs. When petitioning for an ODL, our DWI Attorneys make sure to discuss the possibility of an interlock requirement.

Interlock and Criminal Cases

In most situations, a first-time DWI offender does not have to worry too much about an interlock requirement before their case ends (except possibly as a condition of bond). If you are a first-time DWI offender and the court places you on DWI probation, the court will likely (but not always) order you to install an interlock on your vehicle. The likelihood of the court ordering installation of an interlock increases if the DWI involved an accident. The primary situation, for first-time offenders, where the court must require an interlock is if your BAC is at .15 or above.

With one exception, court must require you to install an interlock if you have a previous DWI conviction. There is an exception if the previous conviction is over 10 years old.

If the court places you on deferred adjudication for your DWI, the court must require you to install an interlock. This is the case UNLESS, based on a substance abuse evaluation, the court determines that the safety of the community doesn’t require an interlock.

Finally, if you are under 21 at the time of the DWI, the court must require an interlock.

General Rules

The interlock must be installed in the vehicle owned by or most regularly driven by you.
You may not drive ANY vehicle that does not have an interlock installed.
You are responsible for the cost of installation and calibration.
- If the court finds you indigent, they may allow for reasonable payment plans.

Length of DWI Interlock Requirement

The length of an interlock requirement varies depending on why the court requires an interlock.

If interlock is a condition of a DWI license suspension, then the interlock MUST remain installed for the ENTIRE suspension.

If interlock is a condition of probation, then the interlock MUST remain installed for at least 50% of your probation. Please note that this also affects the waiting period to seal your record.

If this is the second DWI then interlock MUST remain installed for the whole probation period and possibly longer. This is dependent on when the first DWI occurred.

The applicable statues are Tex. Code Crim. Pro § 42A.408 and Tex. Transp. Code § 521.246.

More about Mimi Coffey

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), Theft, and Possession charges.

Mimi is also listed on several “top” directory listings such as DWI Lawyers for Wise County, DWI Lawyer Tarrant County, Dallas DWI attorney, DWI attorneys Collin County and DWI attorneys Parker County. Mimi is a caring DWI Lawyer in DFW, She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.