Tag Archives: Joseph P Appelt

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.

Am I Eligible for Alimony?

When a couple is divorcing, the alimony question is on everyone’s mind. You may be wondering how much alimony (sometimes referred to as spousal support) you may have to pay or how much you may receive.

In 2011, the Texas alimony laws radically changed. While the new law is praised for being more fair and balanced, alimony in Texas still is not guaranteed. Alimony is need-based and is granted only to provide for a spouse’s minimum reasonable needs. A judge orders alimony only when a spouse cannot earn sufficient income to meet his/her needs and it is ordered only for a defined minimum period.

Texas alimony law allows for a payment of up to $5,000 per month, or 20 percent of a spouse’s average monthly gross income, whichever is less. Under the new law, no alimony is awarded for marriages that lasted under 10 years. If the marriage lasted between 10–20 years, alimony can be awarded for up to five years after the marriage ends. If the marriage lasted 20–30 years, alimony can be awarded for up to seven years. Finally, if the marriage lasted 30 years or longer, alimony can be awarded for up to 10 years.

A judge considers many factors before determining how much alimony to order and for how long. To identify minimum reasonable needs, the judge considers the age, education and employment skills of the spouse requesting alimony. If one spouse contributed to the marriage as a homemaker or helped the other spouse attain education, those factors are considered as well. The judge may also consider whether either party hid assets, committed fraud, committed adultery or engaged in family violence.

If a spouse’s circumstances change once alimony is ordered, the alimony order can be altered by filing a petition with the court.

If alimony is in your future, either on the paying or receiving end, it’s best to consult with an experienced family law attorney to best protect your rights.

Can I Get My Record Sealed?

With the advent of the Internet, access to personal information is easier than ever. When you apply for a job, a criminal background check is routine. When you apply for a mortgage or college admission, expect to have your background checked. For most people, this is not a problem. However, if you were charged with a crime in the past, it can prevent you from obtaining your desired goals.

In Texas, there are two options available to clear your adult criminal record, although both options have many restrictions. An expunction of criminal records may be available if:

  1. The charges against you were subsequently dropped
  2. You were acquitted
  3. You were found guilty, but the conviction was later overturned

The second way to clear your record is through non-disclosure. This may be available to you if you were granted a deferred adjudication probation. This means that you were not technically convicted because the judge did not specifically find you guilty of the offense. Instead, the judge found that there was enough evidence that a finding of guilt could have been made. Non-disclosure is available for some misdemeanors after two years.

In certain circumstances, you may not be eligible for either expunction or non-disclosure, such as if you completed straight probation or were convicted of murder or sex offenses. In those cases, the only ways to clear your record are to win a pardon from the governor or the president, or to file a writ of habeas corpus — long shot chances at best.

In you are granted either an expunction or non-disclosure, private individuals and businesses cannot learn about your criminal case. This means that you do not have to disclose this event on your job application, mortgage application, or college admission form. However, the police, the Federal Bureau of Investigation and other governmental enforcement agencies can still see the sealed records.

There are many excellent reasons to seal your record. Your best bet is to contact an experienced San Antonio criminal defense attorney to discuss your options.

Establishing Paternity Is Important

Fathers are generally considered extremely important to the well being of their children, both emotionally and financially. Identifying the father of a child is important because it gives legal rights and benefits to the father, the mother and the child.

Paternity refers to the legal recognition of a man as the father of a child. In Texas, if a child is born within a marriage, the law presumes that the husband is the legal father unless paternity is established otherwise in a paternity suit. If a child is born outside of a marriage, there is no legal father unless steps are taken to establish paternity.

How to establish paternity

In Texas, paternity can be established in two ways — administratively by filing a form or judicially through formal court proceedings. Proceeding administratively requires the cooperation of the mother and father. This method saves the parents money and usually proceeds quickly. The parents sign an Acknowledgement of Paternity (AOP) form and file it with the Bureau of Vital Statistics. If the Bureau of Vital Statistics approves the form, paternity is established. If one parent won’t cooperate to sign an AOP, paternity must be proven judicially. It is beneficial for the parent seeking to establish paternity to consult with an experienced family law attorney to prove paternity through the courts.

Why establish paternity

Identifying the legal father is important because in addition to knowing the identity of the father, it may allow the child to receive the father’s health and life insurance benefits as well as an inheritance. Paternity gives both parents the right to get a child support order, get a court order for visitation or custody, and gives the father legal rights to have a say in many decisions made for the child. It’s important to have paternity legally recognized because if not, there is no legal recourse if the father dies, becomes disabled, or simply decides to stop paying voluntary child support.

Fathers have the duty to financially and emotionally support their children. It’s best if paternity is established sooner rather than later so that the child and the parents can all benefit.

Do You Need a Living Will in Texas?

None of us likes to think of a time when we might become incapacitated and unable to make even the most basic decisions. However, the old Boy Scout motto, Be prepared, is an excellent idea. Those who prepare ahead of time for unpleasant life events are ultimately better off, as are their families.

A living will, or a directive to physicians, is a document that clearly defines the types of medical treatment you would like to receive or not receive in certain situations. It can, for instance, instruct your doctors not to use artificial means to extend your life if you are diagnosed with a terminal condition. A related document is a medical power of attorney. This names a trusted person, called your agent, to direct your health care if you are unable to do so yourself. Most people name a spouse, partner, relative or close friend to serve as their agent.

In Texas, it is strongly recommended that citizens have a living will and medical power of attorney. Why? Because if you become incapacitated and unable to make your own medical decisions due to an illness, accident, or old age, these documents can help save your life or ensure that your wishes are followed. If you haven’t recorded your wishes regarding these matters, these decisions will be made by family members you may not want making those decisions, or by doctors or even judges. They make decisions based on what they believe to be best, not what you want.

If you are a competent adult, you can execute a living will in the presence of two disinterested witnesses or a notary public. The living will takes effect when you become a qualified patient, meaning when you become diagnosed with a terminal or irreversible condition that is certified in writing by your attending physician.

No one lives forever, much as that thought may make us uncomfortable. It is best to consult a family law attorney to draft your living will and related documents in order to be prepared before you actually need them.

Young Carefree Texas Drivers May Face DWI Charges

A rite of passage for any teenager is getting a driver license. For many, another rite of passage is drinking alcohol. The two are a deadly mix. As most know, teens make up the highest risk of accidents amongst all groups of drivers. On top of that, Texas unfortunately leads the nation in the number of accidents related to driving while intoxicated (DWI), with about 2,000 each year.

In Texas and across America, the legal limit for blood alcohol concentration (BAC) while driving is 0.08 percent. The legal drinking age is 21. Texas has a zero tolerance law for underage drinking. That means that a driver under the age of 21 with any detectable amount of alcohol has committed a violation. Young drivers account for many drug and alcohol related accidents because they reach higher alcohol levels more quickly than people with higher body weights and more experience digesting alcohol.

If a teenager (or anyone) is pulled over on suspicion of DWI and refuses to perform a breath or blood test, the driver license is usually immediately suspended for six months. The DWI penalties for teen drivers under the age of 21 can vary according to the amount of alcohol in their system, but the penalties generally are

  • 30 days suspension for a first offense
  • 60 days suspension for a second offense
  • 180 days suspension for a third offense

DWI convictions also carry a heavy financial penalty called a conviction-based surcharge. This is an ongoing additional fine that must be paid for three years and can be thousands of dollars. Teen drivers may also be ordered to attend alcohol awareness courses and perform community service.

Finally, teens need to be aware that they can face legal liability for their actions. Every driver in Texas owes a duty of safety to others on the road. A violator of this duty can be held legally accountable for his/her actions through a lawsuit.

Teens must be informed about the severe consequences of DWI. If your teen is facing punishment, it’s best to consult an experienced San Antonio DWI attorney to protect your teen’s rights.

Domestic Violence Legal Issues

Unfortunately, domestic violence (often referred to as family violence in Texas) is a common occurrence. Nearly 75 percent of all Texans have either experienced domestic violence themselves or know of a family member or friend who has. If you have been a victim of this crime, or know someone who has been, there is help available.

In Texas, domestic violence is defined as an assault by a person on a spouse, former spouse, girlfriend, boyfriend, or member of the same family or household. Victims of domestic violence should report the abuse to the police right away. If the situation is imminent, call 911.

Whether the perpetrator is arrested is up to the discretion of the police officers. The perpetrator can be arrested on either misdemeanor or felony charges, depending on the severity of the actions and the injuries. Once you report the incident, you are not allowed to change your mind and drop the charges on your own. It is the prosecutor’s decision whether to pursue criminal charges at that point.

If you are a victim of domestic violence, consider hiring an attorney to help you file for an order of protection. The prosecutor may ask the court to put an order of protection in place in cases of domestic violence. When a protective order is issued, the perpetrator is not allowed go near the victim or the victim’s home or workplace, threaten the victim, or possess a firearm. Once a protective order is in place, the victim cannot decide to remove it — only a court can modify a protective order.

If you are a victim of domestic violence, reach out and get help. Texas has many laws and resources to support you and keep you safe. A San Antonio family law attorney may also be able to advise you.

Prohibited Weapons in the Lone Star State

Texas is a state of big ideas, big politics and big weapons. If you are a Lone Star State resident and love weapons, you need to understand that certain weapons are prohibited. You can get into big trouble with the law if you fail to comply.

Under the Texas Prohibited Weapons law, it is illegal to knowingly possess, manufacture or sell:

  • An explosive weapon
  • A machine gun
  • A short-barrel firearm
  • A firearm silencer
  • A switchblade knife
  • Knuckles
  • Armor-piercing ammunition
  • A chemical dispensing device
  • A zip gun

If you are found in possession of one of these weapons and are charged, you might have a defense if:

  • You were performing official duties of the armed forces, National Guard, governmental law enforcement agency or correctional facility
  • Your possession was pursuant to registration under the National Firearms Act
  • Your conduct was incidental to dealing with a switchblade, spring blade knife, or short-barrel firearm solely as an antique or curio
  • You were dealing with armor-piercing ammunition solely for the purpose of making ammunition available to the armed forces, National Guard, governmental law enforcement agency or correctional facility.

It is illegal to carry a firearm or prohibited weapon at the following places: schools, polling places, courts, racetracks, secured areas of airports, and within 1,000 feet of a correctional facility on the date of an execution.

Many people wrongly believe that if they forgot or didn’t intentionally carry the weapon in one of the prohibited places, their case should be dismissed. However, in Texas, the unintentional but reckless carrying of the weapon can be a violation.

You may apply for a license to carry. To obtain one you must be qualified to purchase a handgun under state and federal laws. You cannot have a felony conviction (or a misdemeanor conviction less than five years old), pending criminal charges, chemical or alcohol dependency, certain psychiatric diagnoses, restraining orders, or tax or child support defaults.

If you have questions about the legality of certain weapons, consult with a Texas criminal defense lawyer today.

How to Get Around with a Suspended License

You don’t know what you have until it’s gone. We’re all familiar with that old adage. It applies to things we take for granted. Our driver license certainly falls into that category. Few of us remember that driving is a privilege, not a right.

If your driver license is suspended, the results can be devastating, especially in areas with no public transportation. Suddenly, you have no way to get to work, school, or church. If your license is suspended, it’s important that you pay all fines that have been assessed against you. If your suspension is the result of a conviction, you must also pay surcharges assessed by Department of Public Safety (DPS). These annual surcharges are typically paid every year for three years from the date of conviction. They can be quite hefty, often in excess of $1,000 to $2,000 every year.

If your license has been suspended, you may be able to apply for and obtain an occupational license, sometimes called an essential need license. This is a special type of restricted license that is issued to individuals whose driver license has been suspended, revoked, or denied for reasons other than delinquent child support.

An occupational license allows for the operation of a non-commercial vehicle to allow the driver to get to work, school-related activities, or to perform essential household duties. If you are interested in an occupational license, you must apply for one in the county where you reside or to the court of the jurisdiction where the offense occurred. There may be a waiting period based on the type of offense involved.

If you are able to obtain an occupational license, make sure you comply with the restrictions. While it may be tempting to do other errands and additional driving, don’t do it. You will only make matters worse if you get caught.

If your driver license has been suspended, consult with a DWI defense attorney to make sure you comply with all of the restrictions and to determine whether you may be eligible for an occupational license.

What Happens to Your Facebook Account If You Die

If you’re like most young people, you spend at least some time on Facebook. You curate wonderful photos and share your activities with your friends, even perhaps posting what you had for dinner. Have you ever stopped to think what would happen to your Facebook account if you die?

Many states have proposed legislation that would determine who controls your social media accounts when you die. For instance, a social media bill in New Hampshire proposes to give the executor of a deceased person’s estate control over the social media and electronic communications accounts of the deceased person.

Currently, the various social media and electronic communication companies all have different rules governing what happens in the event of the death of a member. For instance, Facebook has a policy of either deleting the account or memorializing it once it receives notice of a death. The memorial page remains active only to allow friends and family to post comments on it. Critics point to the fact that the deceased member’s family does not have any control over the site. Such sites are often targets of cyber-bullying, which only adds to the grief of the family.

Until the social media companies either take action, or are forced to by legislation, the best that social media account holders can do is to make plans to transfer ownership of these valuable accounts to heirs, just like any other asset. Your estate planning lawyer can help you prepare an addendum to your will listing all of your social media and electronic communication accounts and correspondingly list the names of the persons you want to bequeath those accounts to. You can pick different people for different accounts. It’s best to provide the passwords to those accounts as well.

It’s important to plan for the transfer of these accounts upon your death. After all, you wouldn’t want your precious memories to fall into the wrong hands or worse yet, get deleted.