There are a lot of misunderstandings, misperceptions, and misinformation floating around about the law. Information is powerful. Knowledge is liberating. Get to know as much information as you can. Get to know a trial attorney.
1. If you are stopped by Law Enforcement.
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If you are driving along and a police officer flashes his lights to pull you over, the first thing you need to do is to remain calm. If you have consumed alcohol, it is critical that you proactively approach this situation to avoid the allegation that you were Driving While Intoxicated. It is imperative that you follow all of the traffic laws during your stop and pulling over. Typically, police officers record you on video camera from the time they pull up behind you all the way through your stop. This is part of their procedure to "collect evidence." So, do your best to not give them anything they can use to harm you. They will be looking for anything from drugs, possession of marajuana, controlled substances, alcohol, etc.
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- All other Texas DUI and Criminal Defense matters everywhere in Texas.
Also, be certain that you have your driver's license and insurance card readily available. Make sure that your insurance is current and up to date - and that you have current insurance records available in your automobile at ALL times.
It is very important that you do not sign a confession or do a lot of talking or explaining. Keep in mind that one of the police officer's primary objectives once he pulls you over is to collect evidence. If he promises you that as soon as you confess or tell him what happened, that you will be free to go - DO NOT believe it. Many people who are in jail right now believed that.
Remember - you have the RIGHT to remain silent. Use It .
Lastly, be sure to not make any sudden moves or conduct yourself in a suspicious manner. Do not give the police officer any just cause to investigate you any further than he plans to.
Law Enforcement has no right to detain you without probable cause. In fact, the law states that "where there is no traffic violation, there can be no further reason to detain a suspect" with the exception of obvious observations such as smelling alcohol on your breath, or drug paraphernalia in plain view.
2. What will happen if a police officer suspects me of drinking and driving?
Here's the reality: if you are pulled over and the police officer has a suspicion that you have been drinking and driving or have committed another driving while intoxicated crime - he is not going to let you just go home. He is going to take you into custody regardless.
So, bearing this in mind - you need to plan accordingly. If the police officer asks you to take a Field Sobriety Test (FST) respond to him by saying: "I am more than happy to cooperate as soon as I confer with my attorney and I can take whatever tests you desire me to take in the presence of my attorney."
You do not have to take the FSTs. You are within your right to have an attorney present with you when you take the tests. And believe me - it is far better off to have an attorney at your side then to subject yourself to the "tests."
One often forgotten fact is that it is not illegal to drink and drive. It is only against the law to drive if you are intoxicated.
3. If I take a breathalyzer test (Intoxilizer) and the results indicate that I am intoxicated, is my case just hopeless?
No, absolutely not. The breathalyzer tests that law enforcement use are some of the most inaccurate and unreliable tests imaginable. They are calibrated to almost always produce an unfavorable result for you. For example, if you have a filling or bridgework or other dental work, you will result in a higher breathalyzer score than if you didn't have the dental work.
Did you also know that the mechanisms that law enforcement uses are so unreliable that the manufacturers do not even stand behind their products with a warranty?
4. I have not been arrested, but I received word that the police want to talk to me about something that happened. I want to know what to tell them.
Tell them that you are happy to cooperate with them. However, since this is a circumstance that you are not familiar with, nor comfortable doing, that you will want to talk to them in the presence of your attorney.
5. I successfully completed my deferred adjudication probation. Can I have my criminal record cleared?
Contrary to popular belief, successfully served deferred adjudication probation cannot be expunged, except in the case of certain class C misdemeanor offenses. However, under a recent Texas statute, you may well be eligible for an order of Nondisclosure, which can potentially seal your record from release to most entities.
6. If I am stopped for a traffic violation and the law enforcement officer asks to have a look inside my vehicle, must I agree?
NO! You are not obligated by law to comply. Think back to your civics class. Remember the term: "unlawful search and seizure"? Well, this is essentially what the officer is trying to do to you! Don't let him get away with it.
Recall also from high school: The Fourth Amendment to the U.S. Constitution states that residents of this country have the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
However, I do caution you that most courts will hold that you waive your right if you voluntarily consent to an officer's request to search you or your property. The law enforcement does not have to present a reason to you to search your property either.
If you have something illegal in your automobile, and you consent to the search, you have just forfeited your right to contest the lawfulness of the search in court.
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Is it worth the time and effort to have my record expunged?Always! To receive a court order that requires the destroying of any record of your criminal encounter is priceless. I consider it the icing on the cake after a victory. Even an Order of Non-disclosure in certain deferred adjudication cases is a prize. To limit the general public from accessing your record can be beneficial in countless aspects of your life.
8. The officers confiscated my driver's license. Is there anything I can do?
Maybe. Depending on the reason for the confiscation, you may be eligible to get your license back or get an occupational driver's license, which allows you to operate a vehicle during specific hours of the day.
9. Is it reasonable to expect the lawyer I hire to have extensive trial experience and a solid record of success?
Yes, it is not only reasonable; it's recommended! What you are facing is probably the most serious, daunting and overwhelming experience of your lifetime. Don't take it lightly and don't hire an attorney that's not up to the task. Ask to see a record of the attorney's victories in the past few years. For example, click here to see my client victories.
10. What types of criminal defense cases can I expect an experience d criminal defense lawyer to be able to successfully defend?
This is a great question, most criminal defense attorneys will be able to defend a wide variety of charges. For example, Heather Barbieri has received success ful outcomes for her clients in the following criminal defense matters:
Criminal Law - Legal Definitions for Criminal Defense Cases
Felony: The term ?felony? is a crime for which the punishment is for a prison term of one year or longer (typically in a state prison, not a county or municipal jail). Some serious felonies (e.g., murder) can carry the death penalty in states that still have the ultimate punishment.
Misdemeanor: Misdemeanors are typically crimes for which the maximum punishment is possibly incarceration for one year or less. Some states call for jail terms in the local jail, while others call for it in the state system. Most states categorize DUI/DWI offenses as misdemeanors, except possibly where the DUI/DWI is a ?repeat? offense, or where a death or serious injury from a DUI-related accident causes the DUI/DWI to be upgraded to a felony.
Retainer: A contract between an attorney and his or her client. Typically in some written form, retainers can be oral. The payment of money to the attorney as a ?retainer? signifies an agreement for the attorney to act on the person?s behalf and to represent the person in the legal matter that is the subject of their ?contract?. In many criminal cases, a retainer is a partial payment toward the ultimate, total fee that may be due in the event the case requires certain hearings, trial or possibly an appeal. To avoid confusion on the exact terms and schedule of other payments, retainer agreements should be in writing in virtually all cases.
Nolo Contendere: A form of a plea in a criminal case or traffic case in which (instead of say ?I am guilty?), the person is basically saying, ?I will not ?contest? or defend the charge against me?. Sometimes called by its shorthand name, ?nolo?, the availability of this type of plea is often controlled by state statute. In DUI/DWI cases, it is not unusual that a ?nolo? plea is unavailable in all or some situations (e.g., an underage driver arrested for DUI/DWI may not be eligible for a nolo contendere plea.) Furthermore, a ?nolo contendere? plea is nearly universally counted as a DUI/DWI offense, for license suspension purposes and for mandatory minimum punishment enhancement purposes.
Citation: A legal document authorized by state statute, usually issued by a police officer directly to the person being ?charged? with some minor offense (usually a traffic violation) identifying the nature of the accused offenses. A citation usually identifies a date, location and time to appear in court to answer charges. More serious crimes (and sometimes even traffic offenses) are ?charged? in a more formal document either called an accusation, an indictment, an information or a complaint. In issuing citations on less serious offenses (i.e., a ?moving violation? such as speeding) police officers rely upon the majority of cited drivers to appear at court when and where requested. The alternative would be to make a physical arrest of the person and possibly the posting of cash bail or use of a bondsman or property bond to post bail. A person?s failure to appear (FTA) in court to answer a citation typically results in an arrest warrant being issued for the ?no show? party. In most states, a ?failure to appear? (FTA) triggers a notice to the state driver?s license agency (i.e., DMV, DPS, BMV, RMV, SOS, or DOT) to revoke or suspend the person?s license until the ?citation? has been handled.
Accusation: The form of charging document that a prosecutor uses to identify each specific type of crime alleged to have been committed. An accusation is typically several ?counts? (separate offenses) that identify, in general terms, how, when and in what fashion the offense was committed. In DUI/DWI practice, a person might be accused in alternative ?counts? of an accusation with (1) DUI-alcohol (drunk driving), (2) DUI-per se (being above the state?s alcohol blood level), (3) DUI-drugs [impairment from prescribed or illegal (i.e., cocaine) drugs], AND (4) DUI-alcohol AND drugs, by being under the combined impairing effects of both alcohol and some type of drug.
Information: See accusation. The term ?information? is used in some states to describe the detailed accusatory instrument that the prosecutor uses to bring the formal charges against you. In most jurisdictions, no grand jury is required to hear the underlying charges for an ?information?. The prosecutor?s staff drafts these charging documents, after a full review of the evidence collected by the law enforcement officers at the time of arrest (or investigation of an alleged crime, if not done immediately after the offense occurs).
Complaint: See the definitions under accusation and information. The word ?complaint? is another term-of-art used by some jurisdictions. A complaint is also the starting document in civil litigation, where monetary damages are being sought, or a divorce is being sought, etc.
Indictment: A method of accusing a person of crimes, usually felonies, wherein a group of citizens are convened to hear the prosecution?s evidence against a person in some sort of alleged criminal charges. A grand jury is a holdover from English common law, and is set forth in statutory and constitutional provisions of your state?s laws. An indictment is either reported out of the Grand Jury as a ?true bill? (meaning they are charging the person with the crimes set forth in that document, or as a ?no bill?, which means that the group of grand jurors did not find sufficient, credible evidence that the crimes alleged to have been committed REALLY were committed.
Probation: A judge usually has the option of jailing a convicted offender or may sentence to some or all of the potential jail time on ?probation?. The basic tenet of ?probation? is that the offender (who has been given a chance to avoid straight jail time by the sentencing judge) will not get into additional trouble during the period of the probation term. If so, a ?probation revocation? may occur. While on probation, the offender must report to and stay in touch with a probation officer to assure that the judge?s orders are complied with.
Probation revocation: When a judge has permitted an accused person who either pleads guilty or is FOUND guilty at trial to NOT GO TO JAIL for some portion of the sentence handed down, the judge sets conditions under which the person can stay out of incarceration. The failure of the probationer to follow the judge?s ?conditions? can and usually does lead to a ?probation revocation?. Typically, the person is seized (arrested) first. Thereafter, on a fixed schedule of that judge, the violator is given a day in court to explain or challenge the ?violation?. Individuals who are on probation no longer enjoy all the constitutional protections that he or she had BEFORE the guilty (or nolo contendere) plea or guilty verdict at trial was rendered. For example, the ?standard of proof? in a criminal trial is the HIGHEST in the world: proof beyond a reasonable doubt. In a probation revocation, depending on the state you are facing a revocation in, it is either preponderance of the evidence or probable cause to believe that a violation has occurred.
FTA: (acronym for ?failure to appear?) When a person is issued a traffic citation, accusation, information or complaint and then does NOT show up for court on the stated date and time, the judge will usually order any bond to be forfeited to the court system. Most of the time one or all of the following ADDITIONAL sanctions will occur to a person who fails to appear: (1) the driver?s license will be suspended or revoked, leaving the person exposed to being jailed for driving on a suspended license, if stopped again for any traffic offense or at a roadblock; (2) a warrant or contempt citation can be issued, and the police can then go pick up the person and incarcerate the person UNTIL a new court date is given; and (3) in some states (such as South Carolina) that have an INTEGRATED licensing and auto insurance system, the automobile insurance carrier will be notified of the license suspension, and the policy may then be cancelled.
