Category Archives: Criminal Defense

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.

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 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.

Arrested for DWI? Do This Immediately

It can happen to anyone. You’re out with your friends, have a few too many drinks, and try to drive home. Unfortunately, if you do so, you may be at risk for a driving while intoxicated (DWI) offense.

If you’ve been arrested for DWI in Texas, your license will be suspended unless you take action as soon as possible. Here are some tips to follow to help maintain your driving privileges:

  1. Hire an experienced DWI attorney immediately. You will automatically lose your license 40 days after your arrest if you don’t fight your DWI charge. Your lawyer knows how to fight this charge. If you can’t afford a lawyer, contact the Indigent Defense Office in your county and one may be appointed for you.
  2. If you refused to provide a blood or breath specimen, you must request an Administrative License Revocation (ALR) hearing within 15 days of your arrest. At the hearing, a judge hears your case and decides if there is sufficient probable cause to arrest you on suspicion of DWI. Your lawyer can effectively question the arresting officer about why you were arrested. Even if you lose the ALR hearing, you gain invaluable information that helps your case later. If the judge determines that there is probable cause, your license will be suspended.
  3. If you missed the deadline to request an ALR hearing or if you provided a breath or blood sample and decide to fight the charges, your lawyer will begin discovery to review the police report, arrest records, and videos. If you refused a Breathalyzer, your lawyer may be able to show that, based on the video, you were not intoxicated. If the video shows that you are in control and there are not any other mitigating factors, you should consider taking your case to trial. If you appear impaired on the videotape, your attorney may be able to negotiate a favorable plea bargain for you.

If your license is suspended, your DWI defense attorney may be able to help you mitigate the damage, such as by helping you obtain an Occupational Driver License.

Commercial License DWI

Driving while intoxicated has severe consequences for any driver, but if you are a commercial driver, your livelihood is also on the line.  A commercial party bus driver in Illinois was recently charged with criminal and professional penalties for allegedly driving students to their prom while he was intoxicated.  And who can forget the limo driver who drove some Detroit Red Wings hockey players after they won the Stanley Cup?  The limo driver was intoxicated, and the crash left one player in a coma, one player unable to walk, and the limo driver in jail.

In Texas, if a commercial driver has a blood alcohol limit of 0.04 percent or higher, the driver is over the legal limit.  In addition, the Federal Motor Carrier Safety Administration (FMCSA) regulates commercial drivers.  FMCSA regulations state that any commercial driver operating a commercial vehicle with a BAC of 0.04 percent or higher is considered to be driving under the influence.  Further, if you hold a commercial driver’s license and you either refuse a chemical test or you take one and have a BAC of 0.04 percent in a commercial vehicle or 0.08 percent in any other vehicle, your commercial license will be disqualified for one year.  If you drive a commercial vehicle with hazardous materials, the penalty is three years.

Under Texas law, if you have a commercial driver’s license and you are convicted of a DWI, in addition to the penalties you will receive under the DWI statute (such as fines, possible jail time and suspension of your regular driver’s license), you will also lose your commercial driver’s license for at least one year.  This is true regardless of whether you were driving a commercial or non-commercial vehicle at the time of your DWI arrest.  A second DWI conviction will result in the loss of your commercial driver’s license for life. However, you can apply for reinstatement after 10 years.

If you are a commercial driver, being unable to drive means being unable to work.  If you find yourself facing DWI charges, consultation with a tenacious San Antonio DWI attorney is critical to maintaining your livelihood.

Can I Own a Firearm?

Currently, one of the most hotly debated subjects in the United States concerns gun control laws.  Particularly, many argue that certain individuals should be prohibited from owning firearms.  On the other side of the argument are those who invoke the Second Amendment’s right to bear arms.  A number of state and federal laws have been passed governing the possession of firearms, leading some to ask, “Can I own a firearm?”

Federal law prohibits certain people from owning firearms, regardless of where they live, including:

  • Those convicted of a felony
  • Fugitives from justice
  • Those who are dependent on illegal drugs or alcohol
  • The mentally ill
  • Those convicted of a misdemeanor involving domestic violence

Texas laws tend to support the Second Amendment’s right to bear arms.  Therefore, the State places very few restrictions on the ownership of a firearm outside of those restrictions required under federal law.  In essence, Texas does not apply any other restrictions on owning a firearm than are required by federal law.  It may well be said that if it is illegal for you to own a firearm in Texas, it is illegal for you to own a firearm anywhere in America.

You may have questions concerning your rights to own a firearm in Texas.  Also, you may have been charged with unlawful possession of a firearm.  Whatever legal needs concerning firearms you may have, an experienced weapons defense attorney can help.  Being charged with the unlawful ownership of a firearm is a serious offense and your rights are likely on the line.  Your attorney can help establish your defense and protect your rights.

Top Drug Crime Defenses

Drug offenses can be very serious charges, and they carry stiff punishment under both Texas and federal law. However, there are also a number of defenses available for drug charges, and the success of the government’s case in large part depends on how the evidence was obtained.

Here are a few of the defenses available:

Illegal search

The Fourth Amendment protects citizens against unreasonable searches and seizures and provides that a warrant shall not issue unless the police have probable cause. This basically means that the officer needs to have a valid reason to conduct the search and the warrant needs to specifically describe the place to be searched, the person involved and item to be seized.  If it doesn’t, the search may be illegal.  If a court rules that the search is illegal, any evidence that the police obtained through the search will be suppressed (not be allowed in court to prove the defendant’s guilt).

Invalid search warrant

Even if the police obtained a search warrant, that doesn’t mean that it is valid. In order to obtain a warrant, an officer needs to present a sworn affidavit to a judge and request a finding that there is probable cause to search this particular location for specific evidence. If the affidavit contains incorrect information, information from unknown individuals or informants, or if the descriptions of the search location or items are unclear, the search warrant can be challenged.

Errors in laboratory testing

The government has a very specific burden to present testimony from everyone who touched, processed or tested the drug evidence. If one link in this chain of custody is missing, the evidence will not be admissible in court.  Further, the testing procedures at many labs can be challenged.  If the court agrees that there is doubt as to whether the government properly handled the drugs, the charges can be dismissed.


This occurs when a government agent uses threats, fraud or some other type of undue influence to induce a defendant to commit a crime.

If you have been charged with a drug crime, consultation with an experienced San Antonio drug offense attorney will be invaluable to determine if any of these defenses are available to you to get the charges dismissed.

Texas is Among Top States for Identity Theft

According to a recent report by the Federal Trade Commission, Texas is one of the top states in the country for identity theft. This crime is one of the fastest-growing crimes in America, and Texas ranks seventh in the nation in cases of identity theft per capita.

Identity theft and identity fraud are terms used to refer to all types of fraud in which someone wrongfully obtains and uses another person’s personal data in some way that involves fraud or deception, typically for economic gain.  One popular scam in Texas is a Medicare scam.  The victims usually receive a phone call from a person posing as a Medicare official claiming that the current Medicare cards are being phased out and that replacement cards must be obtained in order for the person to keep receiving benefits. To obtain a new card, the seniors are told that they need to confirm their Medicare number (which is identical to their Social Security number) and bank account number. The thief then has access to this valuable information.

The Texas identity theft statute provides that a person commits the offense of identity theft when he knowingly obtains the personal identifying information of another without the consent of that person with the intent to harm or defraud that person. Personal identifying information includes many types of information, such as:

  • Social Security numbers
  • Drivers’ license numbers
  • Dates of birth
  • Passport numbers
  • Employer or tax identification numbers
  • Fingerprints, voice prints or iris image
  • Passwords
  • Telecommunication identifying information or access device

If you have committed identity theft in Texas, you may face some serious punishment, as this offense is a state jail felony. The court may also order you to make restitution to the victim of the offense for lost income or certain other expenses.

If you have been charged with identity theft, it’s important that you contact a reputable San Antonio criminal defense attorney with experience in defending theft charges to get you the best possible outcome for your case.