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Criminal Law

If You Are Stopped

What do I do if I am stopped for questioning?

  • It is not a crime to refuse to answer questions, although it is a crime to refuse to identify yourself and produce proof of your identity;
  • The police may "pat-down" your clothing if they suspect that you have a concealed weapon. Do not physically resist, but you are not required to consent to any further search;
  • Ask if you are under arrest and if so, what the charge is; and
  • Do not "bad mouth" the police or run away even if you believe what is happening is unreasonable. Evading the cops could lead to your arrest and/or additional charges of evading arrest.
  • For great tips on talking to the police at football games, concerts, and parties, read the LSS Guide for talking to cops at big events, 6 Tips to Avoid Being Arrested at Festivals.

What are some things I should NOT say to a police officer?

  • I know my rights.
  • My daddy's/mommy's an attorney.
  • You can't do that.
  • I'm a criminal justice major/law student.
  • Can you hold my beer while I get out my driver's license?
  • I usually get a warning for this.
  • I pay your salary.
  • You're not gonna check the trunk are you?
  • Sorry I was speeding - my radar detector was not plugged in.
  • I didn't think that university cops were real cops.
  • Why aren't you out catching real criminals?
  • You're out of your jurisdiction.

If I am arrested, do I have to be read my Miranda rights?

A suspect must be read his Miranda warnings if 1) s/he is being questioned by police officers or other state officials and 2) s/he is being detained by those officials. If the police do not do this, then any statements made during the questioning are generally inadmissible in court. If a suspect is being questioned by police officers but is not detained, or is being detained but not questioned about anything beyond their identity, any statements made can be used against the suspect in court.

What if I am stopped while driving my car?

  • Show your driver's license and proof of insurance upon request.
  • Remember, except for the reasons noted below, the general rule is that the U.S. and Texas constitutions give you the right to refuse to allow a search of your person or car.
  • Also, both constitutions permit you to refuse to answer any questions or perform any "field sobriety tests" for the officers unless you voluntarily decide to do so. It is normally best to speak with your attorney before answering any questions, doing coordination tests, or permitting any search.
  • If you are given a ticket, you should sign it or you can be arrested. Signing the ticket merely indicates that you agree to appear in court. You can always challenge the ticket once you get to court.
  • If you are suspected of DWI and refuse a blood, urine, or breath test, your driver's license may be suspended.

When can a police officer search my car?

Your car may not be searched unless 1) you give consent, or 2) there is probable cause. Unfortunately, there is no hard and fast rule as to what is probable cause. Courts have held that mere suspicion or hunches are not probable cause, nor are nervousness, fidgeting, or ambiguous gestures on the part of the suspect. On the other hand, courts have held that the odor of marijuana in a car can serve as probable cause for a search. If a judge decides that probable cause did not in fact exist, all evidence found as a result of the wrongful search will be excluded from any resulting trial.

If, after pulling over your vehicle, a police officer properly believes that he or she has probable cause to believe that you have been involved in a crime, he or she may conduct a full search of the vehicle. If, however, the officer does not have probable cause, he or she must limit the search to items in the car within plain view-- under the seats, inside the glove box, and inside the trunk are off limits.

If You Are Arrested

What happens if I am arrested and taken to the jail?

  • You have the right to remain silent and to talk to a lawyer before you talk to the police. If you cannot pay for a lawyer, you may have the right to a free attorney, and you should ask the police how the lawyer can be contacted;
  • After you are arrested or immediately after being booked, you have the right to make phone calls in the local dialing area to a lawyer, a bail bondsman, or any relative or other person; and
  • Sometimes you can be released without bail on a "PR" or "Personal Recognizance" bond. When bail is being set, you can also ask the judge about lowering it.

Traffic Offenses

If a police officer misspells my name on a ticket, will the charge be dismissed?

The fact that the police office may have made a mistake while writing the ticket does not automatically invalidate the ticket, unless it is a fundamental or serious error. All that is required is that the ticket reasonably identify you and the events surrounding the offense with sufficient certainty that the person, place and basis of the crime are ascertainable.

If I receive a speeding ticket what should I do?

First and foremost, it is important that you sign the ticket....Failure to do so may result in your immediate arrest. Next, after you have left the scene, you should either sign the back of the ticket and request defensive driving or plead not guilty. It is normally a bad decision to pay the fine and plead guilty or no contest.

What is defensive driving?

It is an intense one day course that instructs you in a myriad of safety techniques that might help you to avoid an accident and be a better driver. In many instances, even if you are charged with a minor traffic offense that does not involve an accident, you can resolve the matter with minimal cost by taking such a course. These are available through a variety of venues, including the internet.

The most significant restriction is that if the offense was speeding, you cannot have been exceeding 25 mph over the limit and you cannot have taken the course within one year from the date of the second offense. Also, you must have a valid Texas driver's license to be eligible for this option.

What are the advantages to meeting with the prosecutor?

If you plead not guilty, this will give you the chance to ask for such a meeting to try to plea bargain the case. You can always change your not guilty plea any time before the judge or jury passes sentence. Remember, the prosecutor represents the state (NOT YOU) and is not someone in which you should confide. However, they are usually fair people who do want to reach a reasonable compromise in these disputes.

You can ask them to give you a deferred disposition (similar fine, but the ticket stays off your record if you do not repeat the offense in the next few months) or to allow you to take the defensive driving course a second time (some courts will allow this). This will permit you to keep the ticket from being reported to your insurance company and increasing your rates significantly (which presents a much worse financial impact than the fine associated with the ticket).

Of course, you can contest the ticket in trial as well, but often it is more practical to pursue one of the suggestions noted above from a time and cost perspective.

What is the Texas "points system?"

The system assigns points to most moving violations and applies those points to your license as follows:

  • Two points for a moving violation conviction in Texas or that of another state;
  • Three points for a moving violation conviction in Texas or another state that resulted in a vehicle crash.

Points will not be assigned for speeding less than 10% over the posted limit (except in school zones) or seat belt convictions. The Department of Public Safety will assess a surcharge when you accumulate a total of six points or more on your license during a three-year period. You must pay a $100.00 surcharge for the first six points and $25.00 for each additional point. In addition, if you are convicted of driving while your license is invalid or without required liability insurance, you will be assessed a surcharge of $250.00 paid annually for three years. Failure to pay any of the surcharges described above within 30 days of demand will result in the suspension of your driver's license.

DWI Advice

What is DWI?

This is one of the most common and most serious charges students typically encounter. In Texas, if you are intoxicated to the extent that you cannot properly operate a motor vehicle you are potentially liable for a DWI charge. If your blood alcohol content exceeds 0.08%, then there is a legal presumption that you have reached the point where you cannot safely drive, and you can be charged with DWI.

The consequences of being convicted of DWI are severe. A first offense is considered to be a Class B misdemeanor. You can be jailed for a minimum of seventy-two hours and a maximum of 180 days, fined up to $2,000, required to pay court costs, have to attend an alcohol awareness class and pay a probation officer a set monthly fee that averages about $50 per month for the entire time that you are put on probation (which is usually about two years)The court can also, at their discretion, have a deep-lung breath analysis mechanism installed that makes the vehicle inoperable if ethyl alcohol is detected in the breath of the operator. This device must be installed on your vehicle at your expense. It will remain on your auto for at least half of the court imposed probationary period. If your blood alcohol content ("BAC") exceeds 0.15, then this device becomes mandatory.

You will also be required to pay a surcharge to keep your license. A first time DWI is a Class B misdemeanor and results in a $1,000.00 surcharge, paid annually for three years. However, even if it was your first DWI, if your BAC exceeded 0.15%, you may punished more severely, although the surcharge remains the same. A second time DWI results in a $1,500.00 surcharge, paid annually for three years. In addition, the deep-lung breath analysis mechanism mentioned above is mandatory, regardless of your BAC. If you take the breath test and your BAC is 0.16 or greater, the surcharge rises to $2,000.00. The charges are cumulative; therefore, you could pay $1,000.00 as a result of your first DWI and an additional $1,500.00 for your second DWI, paying a total of $2,500.00 annually for up to three years. Also, the previous rule that DWIs only were enhanced if they had occurred in the past ten years has been eliminated; now any DWI conviction anytime during your life will count toward determining the appropriate penalty.

Furthermore, Your insurance rates will skyrocket (probably doubling at minimum) as soon as you are convicted. These rates will not reduce to their pre-conviction level for three years after the offense, even if you have no further offenses during that time. The alternative is worse; your insurance company could choose to "drop" your policy. This would force you to obtain liability coverage from the state's high risk pool of drivers, an option that is very expensive. As the ad says, you cannot afford DWI!

What do I do if I am charged with DWI?

  • Be courteous at the scene, identify yourself, show your driver's license and insurance papers, but it is recommended that you do not do any sobriety tests as these could be used against you in court;
  • If you are arrested, you cannot stop the police from video-taping you, but again, you do not have to do any of the tests that are requested of you; and
  • Although your license can be suspended if you refuse to take a breath test, you may wish to refuse this test and ask to consult with your attorney first.

Other Alcohol Misdemeanor Crimes

What is a "DUI?"

A minor who operates a motor vehicle in a public place while having any detectable amount of alcohol in his or her system is guilty of this criminal offense. Because the law only requires a "detectable" amount of alcohol in the young driver's system, it is easier to be convicted under this law than normal DWI. Penalties include fines, community service, and attendance in an Alcohol Awareness workshop. A third offense may also include a jail term.

What other alcohol offenses do UT students commonly encounter?

A minor possessing, consuming, purchasing, or attempting to purchase alcohol, or the misrepresentation of their age (for example, using a fake I.D to buy liquor). A conviction for a first offense for any of the above crimes is punishable by fines, community service, and a suspension of your driver's license for 30 days. The penalties are stiffer if the individual committed the offense at a party involving binge drinking or alcohol abuse, in which case the court must order that she perform community service, attend an alcohol awareness program, and that her license be suspended for 180 days. The penalties are also harsher if the conviction is a second or third offenses, which leads to a 60 and 180 day driver's license suspension, respectively. In addition, for the third conviction, the fine is increased up to $2,000 along with the requirement that you may serve up to 180 days in jail.

Several of my friends have been charged or threatened with "public intoxication" - what is that?

If a person appears in a public place while intoxicated to the degree that the person may endanger the person or another, then they could be charged with this offense. It is a Class C misdemeanor (lowest level), but you could still end up spending a night in jail if you are charged with this offense. Obviously, this is a somewhat subjective crime, so guilt is often determined by all the surrounding circumstances of the case. However, one accused of public intoxication does not have the right to demand a breathalyzer or field test to prove their sobriety.

I want to help my friend if he gets alcohol poisoning at a party, but I¹m a minor and I don¹t want to get in trouble. What should I do?

The Texas Legislature recently passed legislation creating an exception to minors committing the offense of possessing or consuming alcohol by granting immunity to the first minor who requests emergency medical assistance in response to a possible alcohol poisoning, or to other minors who stay on the scene and cooperate with medical and law enforcement professionals.

Marijuana

What are the penalties for the possession of marijuana?

It depends upon the amount that you have:

  • Possession of two ounces of marijuana or less is a Class B (mid-level) misdemeanor;
  • Four ounces or less but more than two ounces is a Class A (high level) misdemeanor;
  • and the offense level continues to rise all the way up to a first degree felony if you possess 2,000 pounds or more.

There is a presumption that one intends to distribute marijuana if you possess over 5 pounds of the drug and the penalties become much more serious for that offense.

What about synthetic marijuana? Is that a crime too?

Yes. Possession of synthetic marijuana, also known as "K2" or "spice," is no longer legal, and is punished by the amount possessed, in the same scheme as "real" marijuana (see above).

Can a person just "get a ticket" for possession of marijuana?

Texas police officers are now able to issue a citation and order to appear instead of arresting someone for class B possession of marijuana. This doesn't mean the case is any less serious than it would have been had that person been arrested and jail time is still a possibility. The person will still be required to post a bond and attend court just as if s/he had been arrested for the offense.

Theft by Check

What constitutes the crime of "Theft by Check?"

If you obtain property or secure performance of service by issuing a check and the check is later returned due to insufficient funds, the holder of the bad check normally must give you written notice of the return. If you fail to pay the holder in full within 10 days of your receipt of the notice, such failure constitutes evidence of your intent to commit theft and you may be prosecuted.

If I am unhappy with a service I receive and stop payment on the check, am I subject to prosecution?

If you are unhappy with a service, you do have the option of stopping payment on the check you wrote to pay for the service. Police departments normally consider this a "civil matter" and will not pursue criminal charges. Note that this does not apply to the purchase of property. If you purchase a piece of tangible property and later stop payment on the check, you can be criminally prosecuted.

Sexually Explicit Recordings and Internet Issues

Texas law specifically prohibits individuals from promoting sexually oriented photographs or visual recordings made without the subject's consent. This means it is illegal to secretly record a sexual act involving your girl/boyfriend and post the recording on the internet, for example. It also means that you are not allowed to take a cell phone photograph of a sexual nature without the individual's consent.

Further, it is now illegal for anyone who is 17 or older to solicit a minor (defined as someone who is under the age of 17), or someone who portrays themselves to be a minor, over the internet for sexual contact or sexual intercourse. One is also prohibited from relaying sexually explicit materials to these minors.

Stalking and Harrasment

What is harassment?

A person commits this offense if, with intent to harass, annoy, abuse, torment, or embarrass another, s/he:

  • initiates obscene communication by telephone or in writing;
  • threatens, by telephone or in writing, to inflict bodily injury on the person or to commit a felony against the person, a member of his family, or his property;
  • causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously; or
  • makes a telephone call and intentionally fails to hang up or disengage the connection.

What is Online Impersonation?

A person commits this offense if:

  • She uses the name or persona of another to create a web page or post messages on a commercial social networking website [e.g. Facebook] or other website without obtaining the other person's consent and with the intent to harm, defraud, intimidate or threaten any person, or;
  • She sends an electronic mail, instant message, text message or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person without obtaining the other person's consent, with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication, and with the intent to harm or defraud.

What is stalking?

A person commits this offense if the person, on more than one occasion, knowingly engages in conduct,which the victim will reasonably regard as:

  • threatening bodily injury or death to the victim or a member of the victim's family or household;
  • threatening bodily injury or death to an individual with whom the victim has had a dating relationship; or
  • threatening damage to the victim's property.

What are the penalties for these three offenses?

  • Harassment is a Class B misdemeanor for which the punishment is a fine up to $2,000; or confinement in jail for up to 180 days; or both such fine and confinement.
  • Stalking is a felony of the third degree for which the punishment is a fine up to $10,000 and two to ten years confinement.
  • Online impersonation is either a Class A misdemeanor punishable by a fine of up to $4,000 and confinement in jail for up to one year, or a 3rd Degree Felony punishable by a fine of up to $10,000 and two to ten years in prison depending on the facts.

What can I do if I believe I am being harassed or stalked?

You can call any of the following agencies for information and/or help. DO NOT WAIT UNTIL SOMETHING SERIOUS HAPPENS TO CALL. If you call early, you may be able to take actions to prevent injury or harm.

UTPD (if the acts occur on campus) 471-4441
Emergency 911
Victim Services / Austin Police Dept. 472-HELP
Teleserve / Austin Police Dept 974-5037
Family Violence Protective Team 974-8535
Detective Rick Shirley (APD Stalking Unit) 206-3985
SafePlace 267-SAFE

What other resources for University of Texas students who believe they are being harassed or stalked?

  • Call the UT Police Department (UTPD) at 471-4441. UTPD advises students not to wait for repeated actions or behaviors, but to call as soon as they have good reason to believe they are being stalked or harassed. UTPD will conduct a thorough investigation and follow up on the situation.
  • If you are a university student living on campus in a residence hall, you should advise your Resident Assistant (RA) of the situation. Your RA can then document your complaint and pass the information along to the Hall Coordinator and any other housing administrator that needs to be informed.
  • If you are a university student living off campus you should notify someone in the management office so that extra precautions or preventative measures may be taken.

If I am being harassed or stalked by another UT student, is there anyone else I can contact?

Yes, you can report the matter to Student Conduct and Academic Integrity (471-2841). If the stalking behaviors are occurring on campus, they will investigate and may take formal disciplinary actions against the offender.

Are there other forms of harassment of which I should be aware?

Yes. Stalking or harassment can occur through unwanted email messages. This is becoming increasingly more common among the student population. If this is a concern, you should follow the reporting procedures discussed above.

Does any protection exist for dating violence?

The law provides protection against threats and violence from another person with whom you have been in a long-term, intimate dating relationship. What distinguishes this from an assault case is that it is possible in this scenario to get a protective order.The penalty for a dating violence event has been increased to a third degree felony from a Class A misdemeanor. As each situation can vary greatly, you should consult an attorney regarding the details of your case before taking any action.

Expunctions and Orders of Non-Disclosure

Is there a way to prevent my future employers from learning about a previous arrest?

The only way to remove an arrest from your record is through an expunction. Expunctions, however, are only available to arrested individuals under limited circumstances. First, if an individual is tried and acquitted for an offense, or if she is tried, convicted, but subsequently pardoned for an offense, then she may expunge the record of her arrest for that offense so long as she has not also been convicted for another crime stemming from the same criminal episode.

An individual who has not gone to trial and been acquitted or pardoned for an offense, however, may still expunge the record of her arrest, if and only if she can meet the following set of requirements:

  1. The individual must not have been convicted for the offense for which s/he was arrested, and
  2. The individual did not intentionally or knowingly flee after being released on bail, and
  3. The arrest did not arise out of a warrant issued for a violation of community supervision,
  4. A court has not ordered community supervision for the crime, and either
    1. The requisite time period has passed, or
    2. The prosecutor certifies the arrest records are no longer needed, or
    3. The charge was dismissed because the individual completed a pretrial intervention program, or
    4. The charge was void or based on a mistake or false information, or
    5. The prosecution of the offense is no longer possible because the statute of limitations has expired

If all of these circumstances are true, then an individual who has not been indicted or has been falsely indicted may also expunge the record of her arrest despite her not having been acquitted or pardoned for the offense.

Are Class C Misdemeanors handled differently with regard to Expunctions?

Yes. The "no conviction" and "no community supervision" requirements noted above do not apply. Hence, one arrested for public intoxication, minor in possession of alcohol or any other Class C misdemeanor may have the arrest expunged if she received "deferred disposition" (the Class C equivalent of deferred adjudication) for the alleged offense. Deferred disposition means a final conviction is not entered against the defendant while she completes a period in which she cannot repeat the offense (usually 90 days). Thereafter, the charge is dismissed, but the arrest remains on the defendant's record unless it is expunged. The other requirements do apply, however, so the person must wait 180 days after the arrest date before applying for an expunction.

How long are the requisite waiting periods?

The current expunction law requires that a person wait out a prescribed time period before obtaining an expunction. The time periods are shorter than the statute of limitations for the particular crime committed and vary depending on the class of the crime committed. Those seeking expunctions for Class C misdemeanors must wait until 180 days after the date of arrest, while those seeking expunctions for Class B or A must wait one year and those seeking expunctions for felonies must wait three years after the date of arrest. However, if you decide to request an expunction based upon the shorter waiting period rather than the statute of limitations, the prosecutor may keep your file. If you would prefer that the prosecutor not be allowed to keep your file, you may wish to wait until the statute of limitations for the crime has run.

What if I am not eligible for an Expunction?

Another option is to obtain an "Order of Non-disclosure." Unlike Expunctions, an Order of Non-disclosure is available to those who successfully complete deferred adjudication for a Class B or above criminal offense. Once granted, the Order prevents law enforcement agencies, jails, courts and other public information agencies from releasing arrest information to private third parties. However, the Order does not prevent law enforcement agencies from sharing the information with one another or with certain authorized agencies, such as school districts. The arrest information may also be revealed in the case of subsequent criminal prosecutions.

You will be eligible for this Order immediately upon completion of your deferred adjudication requirements if the crime did not involve, sex, guns or violence. If it does involve these areas, then you will have to wait five years before applying for the order. In the case of felony arrests, the waiting period is ten years. Orders of Non-disclosure are not available to those receiving deferred adjudication for kidnapping offenses, sex crimes, abandonment or endangerment of a child, injury to a child, the elderly or disabled, violation of a protective order, stalking or crimes involving family violence.

So why bother with an Expunction or Order of Non-disclosure?

The advantages of an Expunction or an Order of Non-disclosure are numerous. Employment and other types of applications often ask if you have ever been arrested for a criminal offense. In most cases, a person who has had an arrest expunged or has acquired an Order of Non-disclosure can answer, "No". Note, however, that many law enforcement, security and military agencies expect applicants to disclose even expunged arrests; failure to do so may result in termination. Such is also the case for people applying for a license from such entities as the State Bar of Texas or the State Board of Medical Examiners, wherein an applicant can be denied licensing.

How long does it take to obtain an Expunction/Order of Non-disclosure?

Expunction - Once an Expunction request is filed, it takes approximately six to eight weeks for the court to rule on it. If the request is granted, the court orders all city, state and federal agencies to destroy the arrest records. This normally takes about 4 months, but has been known to take up to one year. You should check on the status with the DPS headquarters located in Austin if you have any concerns.

Order of Non-disclosure - Once the Order is granted, the clerk of the court must send a certified letter to DPS indicating the existence of the Order. The DPS then must send letters to any other agency that might have records of the arrest. No timetable is provided in the statute indicating how long DPS has to complete this task.