Texas Paramedics Now Conducting Blood Draws in DWI Cases

The state of Texas recently enacted a new law that could have major implications for the DWI arrest process. As of September 1, 2013, if requested by a police officer, paramedics are authorized to collect blood specimens at the scene of an accident or arrest for the purpose of detecting intoxicating substances.

Previously, blood draws were conducted by medical personnel with extensive training at a hospital or jail. Now, a paramedic may collect blood to determine the concentration of alcohol or other intoxicating substances in the blood upon the request of a police officer. According to Bexar County district attorney Susan Reed, this new law is meant to give police “more options and more ability to do warrants and do blood draws in relation to DWI.”

Opponents of this new law fear that Texas is moving in the direction of Arizona. Beginning in 1996, Arizona police officers who are also paramedics were permitted to draw the blood of DUI suspects. Now, police in Arizona attend a three-day training program to learn how to draw blood for the purpose of conducting on-the-scene blood draws. There is some debate over the quality and thoroughness of the training these officers receive. Termed “phlebotocops,” these officers are not required to carry a license to draw blood. Under Arizona law, the qualification of the person who conducts a blood draw is not a factor in determining the admissibility of blood analysis results in a DUI case. As a result, police in Arizona have drawn blood while suspects stand by the side of the road or sit in the back of a patrol car. The Arizona Supreme Court has determined that such blood draws are constitutional and constitute a reasonable search, even though many have been harmed in the process.

Many believe that this new law increases police power and is likely to increase the number of DWI arrests in Texas. If you have been arrested for DWI, an experienced San Antonio DWI attorney at the law firm of Joseph P. Appelt can provide the support you need.

Who Can Be Executor of My Estate?

After you pass away, your will or the probate court designates an individual to manage your estate. The individual who fulfills this role is called the executor or administrator. If you create a will, you are likely to designate a trusted individual to carry out your last wishes. If you die without a will, the probate court takes on the task of designating an executor.

Upon death, an individual is referred to as a “decedent.” The executor of an estate is responsible for identifying and collecting the decedent’s assets and paying the decedent’s debts. Additionally, the executor must distribute the remaining estate according to the decedent’s will or, if no will exists, according to Texas intestacy laws.

Generally, individuals who create a will (testators) select a trusted family member to function as the executor after the testator passes away. Often, this is a spouse or adult child. You should take into account an individual’s capacity to handle the responsibilities of an executor, especially at a time when the individual may be grieving.

Under Texas law, an individual executor must be at least 18 years of age. Texas law also allows testators to designate a business entity such as a bank or law firm to act as an executor. In addition to the individual age requirement, an executor must qualify to act as an executor under Texas law. In Texas, certain individuals and entities are legally disqualified from serving as estate executors. Incapacitated individuals, convicted felons, nonresidents of Texas (unless an in-state agent is appointed), and corporations not authorized to be fiduciaries in Texas are disqualified from acting as executors. Additionally, a court may disqualify any individual or entity it deems “unsuitable” to act as executor.

An experienced San Antonio wills attorney can work to make sure your end-of-life wishes are carried out.

Is Your Spouse Hiding Assets?

Unfortunately for many, the divorce process can get ugly as spouses resort to playing games to get revenge on a soon-to-be former spouse. We have all heard the horror stories of a mega-wealthy CEO disguising income or hiding property to protect certain assets from a divorce settlement. However, deception is not unique to the wealthy. If you are not careful, you could fall victim to a lying spouse’s scheme.

While many couples enter into prenuptial agreements to protect their assets in case of divorce, some individuals simply resort to lying and scheming. Asset hiding can occur before or during marriage. Typically, a spouse who hopes to protect assets in divorce overstates debts and undervalues assets. This leaves the other spouse with a smaller share of property upon divorce.

There are signs that may indicate that a spouse is hiding assets. If your spouse maintains complete control over your finances or bank accounts, you may have cause for concern. Spouses who are secretive about financial decisions or the couple’s financial status may be hiding something. If your spouse erases financial files from your computer, there could be a problem. Spouses who own small businesses tend to have more opportunities to hide revenue or sales proceeds. If your spouse’s business finances seem to change drastically over a short period of time, your spouse may be altering the books to hide assets or income.

Another strategy that a spouse may use to hide assets is to report a drastic drop in the value of investments. A spouse who plans to hide assets may also open a separate bank account unnecessarily. While it may be difficult to catch a lying spouse, bank statements, checks and tax returns can be used to track an individual’s financial activities. Asset-tracing services are also available to individuals who suspect their spouse is hiding assets during a divorce.

If you believe that your spouse is hiding assets, an experienced San Antonio divorce attorney can protect your interests.

Police Mistakes During DWI Arrest

It’s 2 a.m., you are driving home from a bar, and suddenly you see red and blue lights flashing in your rearview mirror. Panic sets in as you pull over and a cop gets out of the car. Being pulled over on suspicion of DWI can be a very intimidating experience, but the responsibility is on the police to carry out a flawless examination and arrest. Police frequently make mistakes that could get you off the hook.

A police officer is not authorized to stop a vehicle based solely on an anonymous tip, or for no reason at all. Police are also not permitted to stop a vehicle just to check your license and registration. The officer must have evidence that the driver committed a traffic violation.

Police may also fail to ask about medical problems that could cause you to fail field sobriety tests. Physical limitations could affect your performance on field sobriety tests. Many individuals are unable to successfully perform the field sobriety tests even when sober because of medical and physical limitations, which can also affect driving or speech, leading an officer to incorrectly assume a driver is intoxicated.

Environmental factors may also be an issue in performing field sobriety tests. Rain, wind, darkness or uneven surfaces, such as gravel, may impair your ability to perform the field sobriety tests. The officer selects the time and place for performing field sobriety tests and is thus responsible for making sure no distracting conditions exist.

Furthermore, officers are required to provide proper instruction and demonstration for the field sobriety tests. If an officer fails to do this, the results of the test may be thrown out. Police are not permitted to use unauthorized tests to analyze whether you are sober, to convince you to take a Breathalyzer test through trickery or to incorrectly read paperwork to you.

If your rights were violated during a DWI arrest, an experienced San Antonio DWI attorney at the law firm of Joseph P. Appelt can fight for a just result.

What Is Virtual Visitation?

After divorce, a former spouse may move out of town, out of state, or even out of the country. When children are involved, this can be devastating for a noncustodial parent. The coordination of a visitation schedule becomes exponentially harder when parents live far apart and, inevitably, one parent spends much less time with the child. In 2007, Texas became one of the first states to enact a virtual visitation law to improve parent-child relationships.

Texas’s virtual visitation statute defines electronic communication with a child and permits a court to grant virtual visitation rights to a noncustodial parent. Electronic communication with a child can include phone calls, email, instant messaging and video chatting. Virtual communication with a child may be the only way for some parents to frequently interact with their children. For a parent who serves in the military, virtual visitation is especially important. Services such as Skype make interaction between parents and children simple when the parent is serving in a foreign country, and these videoconferencing services allow virtually face-to-face communication between parent and child.

Parents do not need court permission to interact with their children virtually. However, couples who are unable to agree on the amount of virtual interaction between a child and parent may benefit from court-ordered visitation time. To obtain virtual visitation rights, the noncustodial parent must petition the court. Virtual visitation orders are not automatically granted. By ordering that time be set aside for virtual interaction, courts are helping to strengthen relationships between children and noncustodial parents. As technological advances continue to be made, the opportunities for virtual communication continue to improve for noncustodial parents and their children.

If you are interested in obtaining virtual visitation rights, an experienced family law attorney at the San Antonio law firm of Joseph P. Appelt can provide the guidance you need.

What Is Deferred Adjudication?

If you have been arrested for a criminal offense, you may have questions about the consequences you face if convicted. Most of us have heard of probation, but what is deferred adjudication, and how can it affect you?

In Texas, probation is called “community supervision.” Probation can be either regular community supervision or deferred adjudication. Regular community supervision is a mechanism by which an offender is not imprisoned, but is monitored by the court. Deferred adjudication is a similar plan offered to first-time offenders in Texas. Offenders typically prefer deferred adjudication, because completion of a deferred adjudication term results in a non-conviction. Record of a misdemeanor is automatically sealed once an offender completes the deferred adjudication term. A felony offense can be sealed after a term of five years. Once the term of the deferred adjudication is completed and record of the offense is sealed, an offender is permitted to deny that the offense occurred. If a defendant goes to trial, deferred adjudication is no longer available. Additionally, if an offender does not comply with the conditions of the deferred adjudication, the offender can be found guilty and sentenced to jail time.

Deferred adjudication is permitted for all offenses not contained in Chapter 49 of the Texas Penal Code. Chapter 49 deals with DWI, boating while intoxicated, flying while intoxicated, intoxication manslaughter and operating an amusement ride while intoxicated. For each of these offenses, deferred adjudication is statutorily prohibited.

For other offenses not listed under Chapter 49, deferred adjudication might be possible. The prosecutor for each case makes the determination as to whether deferred adjudication is permitted. In coming to this decision, the prosecutor considers a number of factors, including prior criminal history, the nature of the offense, whether violence or deadly weapons were involved, and whether injuries resulted.

If you have been arrested for a crime, an experienced San Antonio criminal defense attorney can examine whether deferred adjudication may be available to you.

What You Need to Know About DWI Penalties in Texas

If you have been arrested for DWI in Texas, you may be wondering what penalties you could face if convicted. When calculating your penalties, a court considers a number of factors.

The penalties for DWI in Texas are calculated based upon how many times you have been convicted of DWI, your age, and whether an accident, injury or death occurred. If you had an open container in your vehicle, or if you had passengers in your car, your penalties could also be affected.

DWI penalties may include fines and surcharges, license suspension, or revocation, jail time and community service. In addition, a court may order the completion of DWI education or intervention programs. A first-time offender may face up to a $2,000 fine, jail time of three to 180 days, and a license suspension of up to one year. A court may also order completion of a DWI education program for first-time offenders.

Drivers convicted of DWI may incur a surcharge of up to $2,000 per year to maintain their licenses. If convicted of DWI multiple times, a driver faces higher fines, more jail time and longer license suspensions. In addition, drivers convicted of DWI while driving with a passenger under the age of 15 face special penalties that could include a fine of up to $10,000 and jail time of up to two years.

A driver who causes serious bodily harm or death while driving under the influence may be hit with felony charges. Intoxication assault (serious bodily harm resulting from intoxicated driving) and intoxication manslaughter (death resulting from intoxicated driving) are very serious offenses that could lead to significant fines and jail time. An intoxication assault conviction could lead to a fine of up to $10,000 and between two and 10 years in prison. A conviction of intoxication manslaughter could result in a similar fine and from two to 20 years in prison.

If you have been arrested for DWI, an experienced Texas DWI attorney can work to protect your rights.

Salvia Now an Illegal Substance Under Texas Controlled Substances Act

In 2013, the Texas legislature passed a new law that changed the Texas Controlled Substances Act. As of September 1, 2013, Salvia is considered an illegal substance under the Texas Controlled Substances Act.

Salvia is a hallucinogenic herb that is popular among teenagers. The herb, which is commonly smoked, is easily accessible online and over the counter in many states to adults and children alike. Possession of Salvia is now included in Penalty Group 3 of the Texas Controlled Substances Act.

The newly adopted Section 481.104 of the Texas Controlled Substances Act states:

Penalty Group 3 consists of: Salvia divinorum, unless unharvested and growing in its natural state, meaning all parts of that plant, whether growing or not, the seeds of that plant, an extract from a part of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant, its seeds, or extracts, including Salvinorin A.

Therefore, possession of an unharvested Salvia plant growing in its natural state is legal, but possession of any part or derivative of the Salvia plant is criminally punishable. Possession of Salvia, like all Penalty Group 3 substances, is punishable as follows:

  • Less than 28 grams: Class A misdemeanor punishable by an optional fine of up to $4,000 and/or incarceration for up to one year
  • 28 grams or more, but less than 200 grams: Third-degree felony punishable by an optional fine of up to $10,000 and/or incarceration of between two and 10 years
  • 200 grams or more, but less than 400 grams: Second-degree felony punishable by an optional fine of up to $10,000 and/or incarceration of between two and 20 years
  • 400 grams or more: First-degree felony punishable by an optional fine of up to $50,000 and incarceration of between five and 99 years

If you have been charged with possession of an illegal substance, a Texas defense attorney at the law firm of Joseph P. Appelt can fight to protect your rights.

What if I Die Without a Will?

A will is a very valuable document that helps your friends and loved ones distribute your property after you die. The value of a will is in its ability to help your loved ones distribute your property according to your wishes. What happens to your property if you die without creating a will?

If you create a will, you are referred to as the “testator.” Individuals who die without a will are considered to have died “intestate.” The property of those who die without a will is distributed according to Texas intestacy laws. Intestacy laws follow a strict formulaic approach to property division and do not account for individual circumstances and desires.

If you die without a will, a court assigns an executor to handle the distribution of your estate. The court’s choice of an executor may not be the person you would have wanted to distribute your property, but since you had no will, you have no say in the matter. Property is divided based upon your marital status at death and whether you have surviving descendants.

The general intestacy laws below apply to most situations, but in some cases, property division can become very complex. Usually, if a person dies unmarried and without children, the estate passes to the surviving parents. If the parents are deceased, the estate passes to the siblings or their descendants. If a person dies unmarried, with children, the children or their descendants receive the estate. If the person dies married, any community property passes to the surviving spouse if there are no children or if all of the children are also children of the surviving spouse. Otherwise, the surviving spouse receives half of the estate and the children split the remaining half. If the deceased had separate property, the division of the estate differs based upon whether the deceased had children. In some situations, an estate “escheats” or transfers to the state if no qualifying relatives survive.

A knowledgeable San Antonio wills attorney at the law firm of Joseph P. Appelt can help you draft a will to ensure that your wishes are fulfilled.

Prenuptial Agreements in Texas

Going into a marriage, most individuals own property. When a couple divorces, it is often difficult for one spouse to prove ownership of a piece of property separately. This is because, during the course of a marriage, lines between separate and community property become blurred. To maintain ownership of your separate property, you have the burden of proving that the property belongs to you alone.

To protect separate property owned before marriage in Texas, many couples enter into a prenuptial agreement. Prenuptial agreements provide certainty for individuals hoping to protect their personal assets in the event of divorce. However, to be enforceable, prenuptial agreements must meet specific requirements:

  • Prenuptial agreements must be in writing and signed by both spouses prior to marriage. Notarization is not required in Texas.
  • Both parties must sign the agreement voluntarily. If duress is a factor in obtaining a spouse’s signature, the prenuptial agreement may be struck down as void in court.
  • Full disclosure of each spouse’s assets and liabilities is required, as both spouses must have a complete understanding of the other spouse’s financial situation prior to entering into the agreement. If spouses fail to fully disclose their financial situations, or if the agreement is unconscionable at the time it is signed, the agreement is voided.
  • Prenuptial agreements may address spousal support plans, property distribution and other issues, but provisions that adversely affect child support obligations are not honored.
  • A prenuptial agreement becomes effective on the date of marriage and may only be modified afterward upon the agreement and signature of both parties.

If you are considering a prenuptial agreement, an experienced San Antonito family law attorney at the law firm of Joseph P. Appelt can make sure your property is protected.