OUR BLOG HAS MOVED!!!!

We've recently moved our blog.

We'll keep this one up, and the articles on it, but the new blog can be found at:

Austin Criminal Law Blog

If you prefer the copy/paste method, the new link is:

http://www.lawofficeofrobertkeates.com/blog

Thank you.

Is a Dismissal the same as Expunction? What you Need to Know to Keep your Record Clean

We receive calls quite often about cases that have been Dismissed, and the caller asks "Why is the case still showing up on my criminal background checks?"

Unfortunately for those who have their case Dismissed, Texas Law requires an extra step to have the case stop appearing on Background Reports; called Expunction.

Basically put, a Dismissal is NOT equal to an Expunction.

A dismissal merely means that the criminal proceeding has been terminated, and has not resulted in a Conviction.  Now, this is GREAT for many people who don't need to worry about background checks or criminal history reports.

But a case that has been dismissed will still show up on a backgroundcheck.  Let me repeat that: A CASE THAT HAS BEEN DISMISSED WILL STILL SHOW UP ON A BACKGROUND CHECK.

The only way to try and keep even a Dismissal from the public is to have a Judge sign a Petition for an Expunction.

An Expunction is where a Judge Orders the agencies holding your records to destroy the records of you arrest and of the case.  This includes Police records, Court records, and DPS records (and more).

For more information, visit our website at: http://www.lawofficeofrobertkeates.com/expunctions/expunction.php or contact +Law Office of Robert Keates

What are the Drawbacks and Problems with Texas Expunctions?

How can a Texas Expunction help me?  In Texas, even an arrest or citation show up on your criminal history. A Dismissal is not the same as an Expunction -- Expunction is an additional step. Individuals that have an Expunction granted can legally deny the arrest and subsequent court proceedings ever occurred. The Court's Order will also demand any State agency with the records to destroy them within one year. This includes private businesses that purchased the Criminal Offense Records from DPS. Additionally, having your offenses Expunged can help you get and keep a job by removing traces of the offense from your record.

What are the drawbacks of an Expunction? An Expunction clears State offenses from State and private agencies only. That means Federal Agencies, such as the FBI and Homeland Security can ignore a Texas Judge's Order. Up until the year 2000, the federal agencies tended to comply anyway, however presently it is unknown whether the FBI and federal agencies comply with an Expunction Order in any way. Texas DPS does send a notice of the Expunction to the FBI, but little to nothing is known concerning what the FBI does with with information.

What are my other options? An Expunction is the best way to clear your criminal record; it efficiently and completely erased all State records of the arrest and court proceedings. If your case was dismissed, then Expunction is the way to go.

Read more at our main law site: Austin Expunction Attorney

Bait Bikes Theft in Austin: Entrapment or Impulsive Theft?

A rash of bike thefts in Austin, Travis County (and probably many major cities) has prompted Austin Police Department to focus on Bike Theft crimes downtown, by leaving high priced bicycles at street poles, fences, and sidewalks across the city -- unlocks and unguarded.

Many of these "bait bikes" are left on Campus at UT, and all are equipped with a tracking GPS linked to Austin Police computers.

While some might be locked with a cheap chain or other minor security measure, many are merely leaning against a bike rack, or wrapped to a light pole by an unlocked bike chain.

So what happens when someone decides to take one of the expensive, new bikes? Well, Austin Police tracks the movement and and swoop in for a Theft Arrest.  And, since the bike is expensive (typically around $650-800), and since they include the price of the GPS unit which is attached to the bike (and likewise stolen -- valued at nearly $400), the grand total of the Theft gets the person to a Class A Misdemeanor Bike Theft.

So the first thing people say, is: Entrapment!  Unfortunately, Entrapment is a very narrow defense, meaning it's only available in a few cases.  Theft in the above described situation would NOT be able to take advantage of Entrapment, because, put simply, the person was free to merely walk away.  There was no trap that forced the person to act illegally; instead, the legal course of action would have been to keep walking, which the person was free to do.

A potential defense, although not a good one, could also be Abandoned Property.  The problem is that an Abandoned Property Defense requires the person finding the property to do several things BEFORE taking the item, such as (among other things) trying to find the rightful owner.  While an Abandoned Property defense could work, more information and investigation would be needed to show that there was no Theft.

The best option, now that you know the dangers of Bait Bikes, is to avoid the bike at all costs.

Basics of a Texas DWI in Austin, Travis County

A typical DWI arrest consists of being pulled over while driving, usually for swerving or bad driving observed by an officer. Frequently, other suspicious drivers may call 911 or a DWI hot line to report other drivers on the road.

Once an officer has pulled over an individual for DWI, the officer with conduct several observations to further establish reasonable suspicion or probable cause, such as looking for blood shot eyes, slurred speech, unsteady gait or fumbling with documents, and the smell of alcohol. While pure alcohol has no smell, officers will frequently testify that the flavoring in alcohol (the other additives in the drink) has a distinct smell when consumed and on the breath.

After making preliminary observations, the officer will usually conduct field sobriety tests, or FSTs. The FSTs consist of several physical tests that are commonly thought to gauge a person's intoxication level. Some of the field sobriety tests used are the walk and turn test, finger tip to nose test, stand on one leg test, silent count to thirty test, and the Horizontal Gaze Nystagmus test.

Many times, either before or after the FSTs, an officer will ask the driver of a suspected DWI to breathe into a machine commonly called a breathalyzer or breath test device, used to calculate a person's intoxication by measuring the alcohol content at that moment in the breath.

If the result of a breath or blood test reads at or above a .08%, the driver is generally arrested for DWI, although the results need not be at a .08 or above to arrest. DWI Arrests can be made at breath or even blood test levels below a .08%, if the officer believes the person is too intoxicated to drive. Travis County has been known to prosecute DWI cases based on lower than .08% blood alcohol levels.

At a DWI arrest, an officer will hand the driver a notice of driver's license suspension, which is sent to the Texas DPS. A person arrested on a DWI charge has the right to appeal the driver's license suspension at the DPS with a formal administrative hearing. Typically the arresting officer will testify at the DPS hearing, setting forth the suspected probable cause for arrest and suspension of the driver's license. The key is to request the hearing within ten days of DWI arrest -- within 10 days! -- in order to conduct the DPS hearing, otherwise, the right to an administrative DWI DPS hearing is waived and lost.

What is the Difference in a Dismissal and Expunction in Texas?

Under Texas Law, there is a difference between a Dismissal of a Criminal Offense, and an Expunction of a Criminal Offense.  So which one is better for you?  The answer is obvious: Expunction.

A criminal case that is Dismissed means that the case is no longer pending, and there was no final finding of guilt by a Judge.  There are several ways a case can be dismissed, including Deferred Prosecution, Deferred Disposition, Dismissed for Insufficiency of the Evidence, or in the Interest of Justice.

Currently, as of this writing, if the case was Dismissed, and there are no other related cases that ended in a Conviction (such as a second charge, reduce charge arising from the same facts as the Dismissal), then the case SHOULD be eligible for Expunction.

Beware: Dismissals after Deferred Adjudication Probation are not considered a full Dismissal in terms of Expunction eligibility.

So why is Expunction so great? Why is Expunction better than letting the case remain a mere Dismissal? Because on an Expunction, the Judge Orders the state agencies that hold your record to destroy your paperwork and records.  Essentaillyu, the existence of the arrest, citation, and court proceedings are destroyed.

Expunction Law is always changing, so call us to see what we can do -- before the law changes again.

Will my Arrest (or Ticket) Show Up on a Criminal Background Check in Texas?

One of the first questions I get asked when a prospective client calls me is: "Will this arrest or ticket show up on my Criminal Background Check?"  Arrests or tickets -- even for very minor things like Drunk in Public -- can be embarrassing and often cost people their jobs.

Imagine a prospective employer, roommate, or someone you're dating Google's your name, and the first thing to show up is your mug shot.

Yes, in Texas they will take a mug shot for offenses that might not even result in jail time, like a Public Intoxication.  Which is why it's important to know your rights and how to keep your mistakes private.

Unfortunately, the law in Texas does not help.  In Texas, despite the presumption of Innocent until proven guilty, Texas police and courts forward the arrest, citation, and tickets to DPS, which is the Texas Department of Public Safety; basically a Super DMV.  DPS tracks all arrests and tickets in a central database.

But to make things worse, DPS can legally begin selling that information to private businesses.  yes, that's right; your arrest information is SOLD to businesses that report criminal history information on the Internet.  The great majority of purchasers run online background check services, and instantly can list the arrest, citation, or tickets, with you name, date of birth, and area of offense.

The problem is that often times, a first time offender here in Austin, Travis County Texas, can get the benefit of the doubt and possibly have the case dismissed.  Or, to a greater degree of being problematic, there are people arrested for crimes they did not commit -- and have the case dismissed within a few days of being arrested.  For those people, if they take no action, the arrest will still show up on a Criminal History Report.  Now, both are eligible for Expunction, with the former needing to wait possibly two years (for misdemeanor) to clear the arrest, while the former can do so much sooner.  But the problem still arises that the person needs to take an extra step to protect their privacy.

Texas may want to reexamine their procedures to fall more in line with States that protect their citizen's rights, by waiting for a conviction before reporting and selling criminal history information.  But that approach would obviously lose revenue from the lost sales, so it's doubtful in the near future.

If you have an offense that seems to be rearing it's ugly head on Criminal History Reports, call us for a Free Consultation to see if we can Clear and Destroy your criminal records.

What types of Criminal Cases can I Expunge? When is Expunction Available?

I used to practice in an area where you had the right to have any offense Expunged, even if it resulted in a Conviction.  Obviously it was up to the discretion of the Judge, but a person was afforded the opportunity to clean up their life and move beyond a criminal conviction.  Most common were one-time offenders, who had committed crimes in their youth, typically right around 18-20 years old.  By the time they were 25, they had matured past the typical student/young adult shoplifting offenses, gotten a job, and moved on.  When the Judge saw the person was doing well, with no new offenses, a job, a family, etc..., the record was Expunged.

Texas, however, subscribes to the creed that 'once a criminal, always a criminal.'  Why do I say that?  Because in Texas there is no right to an Expunction on a case that ended in a Conviction.  There are a handful of exceptions or course, such as a person being convicted of underage drinking, which in limited circumstances can be Expunged; but for the most part, once convicted, that offense will remain on your record for your life.

So what can be Expunged? The answer is actually fairly straightforward.  In Texas, a criminal offense can only be Expunged if the case resulted in a Dismissal AND the Dismissal was not the result of a completed Deferred Adjudication probation.  There are a few more questions that need to be asked, such as "did the original arrest result in a final conviction on any reduced or less serious offense?"  If the answer is yes, then you may not be able to Expunge the offense, but more research would be needed.

Expunctions, Motions for Non Disclosure, and Pardons are complex areas of the law, and it's best to talk with a local attorney to find out which options you may have to clear your criminal record.

What is a Texas DPS Departmental Driver's License Suspension? How can I drive legally?

In Texas, there are several ways your Texas Driver's License can be suspended.  Usually your driver's license is suspended from tickets, surcharges, or criminal offenses, but in certain instances, DPS will suspend your license even if you get a warning.

A DPS Departmental License Suspension is an administrative suspension, meaning the suspension is not a criminal punishment.  This "changing of words" is nothing new, and certainly not unique to Texas or DPS; Courts have held throughout the country that it's legal to punish you twice for the same offense, as long as they 'call' one of the punishments "administrative."

For instance, lets assume you are driving on a suspended license.  You get pulled over, given a ticket, and then pay that ticket.  The Judge tells you that your license is now suspended (because of the ticket) for 6 months.  You understand and figure you'll deal with it.

But then, you get a letter in the mail saying DPS, on their own, is ALSO suspending your Texas Driver's License for another year -- ON TOP OF the Court suspension, and based on the same ticket.  You call DPS and say the Judge only suspended your Texas Driver's License for 6 months, but DPS will reply "it's a Departmental Suspension."

DPS will suspend a person's license if they believe they can prove you were driving at a time when your license was suspended.  Since all tickets are routed through DPS, even if you're given a WARNING for your suspended driver's license, and just given a seat belt ticket by the officer during a traffic stop, DPS WILL SUSPEND YOUR LICENSE.

So how do you fight the Departmental Suspension?  You have the right to a hearing, which can be requested WITHIN 10 OR 15 DAYS upon receiving the suspension notice in the mail.  If you miss that date, DPS will say you have waived the hearing and the suspension will stand.  Unfortunately, DPS will not forward mail, so even if you moved and forwarded mail properly through the post office, the suspension letter will not be forwarded.

So if you're having to deal with a Departmental Driver's License suspension in Texas, and have missed the 15 day appeal or ALR hearing, call us right away to talk about other options for your Texas Driver's License.

How a Possession of Marijuana in Austin TX can Suspend your License Forever -- and How to Avoid It.

New laws are being enacted every year, and many are tailored to punishing 'criminals' in creative and illogical ways.  I use 'quotations' over 'criminals' because this article is about Marijuana, and Possession of Marijuana in Texas; and since 10+ states have now either legalized Marijuana, Medical Marijuana, or decriminalized the possession of marijuana.

In Texas, a conviction for Possession of Marijuana (POM) will remain on your criminal record forever, unless the offense is pardoned by the Governor.  There is no right in Texas to Expunge a conviction.  But aside from the potential hardships incurred from a conviction for POM, there is another penalty: a Suspended Driver's License.

Texas DPS will Suspend your Texas Driver's License for SIX MONTHS if you are convicted of POM.  And what's worse, the suspension will last MORE than six months, possibly indefinitely, unless you take the 15 hour Drug Offender Education Program.  once that class is taken, DPS will release the hold on your license, and you will then be eligible for reinstatement (after of course paying close to $135 in DPS reinstatement fees).

While it seems minor (and the country in general seems to agree that Possession of Marijuana for personal use IS minor), a conviction can be costly.  If you have a pending POM, call us for a Free Phone Consultation to discuss how to possibly avoid a conviction on your record, and avoid fees and license suspensions.

August Special Deal: Not Eligible for Driving School for an Austin Ticket? We'll Keep a Conviction Off Your Record*.

Not Eligible for Driving School because you've already taken it for another old ticket? No problem, we'll take care of you.  On Austin tickets, we're offering a special for people who cannot get their speeding tickets dismissed through Driving School or Class because they've already taken it.

Most rates at $250 total (not including Court Costs).  Call Today for a Free Consultation to see if we can help you.

How to Reduce your Texas DPS Surcharges; Surcharge Waivers and Indigency

Years ago DPS offered an amnesty for people with past due Surcharges.  Currently, there is only one application process by which an individual can reduce any DPS Surcharges: the DPS Indigency Program.

The DPS Indigency Program offers reduced surcharges to people living at (or below) the federal poverty level.  This means that if your income is under a certain level, you can have your Texas Surcharges greatly reduced.

So how much can you save? DPS will reduce your Surcharges to 10% of what you owe.  But, it gets better than that; DPS caps the total you'll owe to $250.  That means, if your application is accepted by DPS to reduce your Surcharges, you will owe $250 TOTAL, OR LESS.  Of course, reinstatement fees and other service fees apply.

To apply, you must submit the DPS Surcharge application for Indigency.  The application must be filled out completely and notarized (stamped by an official of the state -- banks will do this for you).  The application is available online from DPS's website HERE pr you can call DPS directly and have them mail it out to you.  The number for DPS Indigency Program is (866) 223-3583.

What if my Texas Driver's License is suspended still?  If your license is still suspended for reasons OTHER than surcharges, you may be eligible for an Occupational License.  Call us for a Free Consultation at 512-216-3211.  

Also, you can read more about Occupational Licenses at:  http://lawofficerobertkeates.blogspot.com/2012/11/suspended-driver-license-help-in-texas_21.html

Why you should Hire a Lawyer for a No Insurance Ticket (Failure to Maintain Auto Insurance)

Most people who receive a No Insurance ticket in Austin find themselves paying the ticket off, to avoid more costly fines later (also known as paying the Early Fine).

But, as you're about to read, there are several reasons why not only will paying the ticket be more costly, it will also continue to cause you to pay for at least three years or longer.

What a No Insurance ticket REALLY costs you.  A No Insurance ticket in Austin, Travis County Texas typically runs about close to $350 after you've factored in fines, court costs, and fees.  Plus you'll have higher rates when you get insurance, and have to spend a half day (or more) at the Courthouse, which means time off from work and quite a hassle.

But what the Court won't tell you (or at least won't highlight) is that by paying the fine, you're pleading Guilty or No Contest, which triggers three things: surcharges, new insurance rules for you, and a Texas Driver's License suspension.

Surcharges.  In Texas, a No Insurance Ticket  conviction will cause you to have THREE YEARS of surcharges linked to your Driving Record and License. For a No Insurance ticket, that means ~$250 EXTRA per YEAR, for three years.  This is considered an Administrative Fee, and is separate from any court fees or costs.  If you don't pay the surcharges, DPS will suspend your Driver's License.  If you don't have a license, they'll suspend you ability to get one.

SR22 Insurance Required.  Once you have certain driving offenses on your record, such as a No Insurance ticket, DPS will require you to carry SR22 insurance.  This type of insurance costs more than typical insurance, and usually must be prepaid in 6 month increments.  This is required for at least a year from the ticket, although lately SR22 has been required for two years, meaning added costs to you.

DPS Driver's License Suspension.  Upon conviction of a No Insurance ticket, your river's License will be suspended.  That means if you're caught driving, you'll get a Driving While License Invalid ticket, which can be a Class B Misdemeanor.  You'll also be required to pay DPS reinstatement fees (typically about $105 plus a little more depending on your driving record) before your actual license can be reinstated.

The TOTAL costs for a No Insurance ticket over three years will be: $1105.00 plus any rises in your insurance and plus the added cost of SR22 insurance.

So How Can You Avoid Added Fees, Suspensions, and Surcharges? Easy; you can hire a lawyer to do everything for you, the right way.  We'll talk you through the process and strategy over the phone, for a Free Phone Consultation at 512-216-3211 -- but generally speaking, we'll go to court, arrange for a (hopeful) Dismissal of the charges, contact DPS, see whether your license is or will be suspended, and then (if needed) get you an Occupational License to hold you over until the license can be reinstated again.  And, we guarantee it'll cost you LESS than the total cost of the ticket listed above.  In fact, mention this blog post (you can merely say you saw our Blog) and we'll give you a quote that's under $400.

Surcharges and Texas DPS Driver's License Suspensions

I receive calls frequently about Texas Surcharges -- "what are they, how did I get them, and why is my license now suspended?"  Aside my those preliminary questions, the next set of inquiries is typically more important:

How can I legally Drive or Reinstate my License?

Can I reduce my Surcharge payments?


Read on for the answers and more information on Texas Surcharges and Driver's License Suspensions.

Texas Surcharges, otherwise known as the Texas Driver Responsibility Surcharge 'Program,' is a non-criminal (meaning not considered a 'punishment') fee that arises from any number of tickets or driving offenses in Texas.  In fact, the Surcharge fees have expanded to non-driving offenses, including drug charges and convictions.

DPS has a fairly decent Surcharge website, available at https://www.txsurchargeonline.com, on which you can view surcharges and FAQs.  But in a nutshell, Texas Surcharges mean that if you're convicted of a traffic offense, you will incur three years of surcharges.  For instance, for a Driving while License Invalid or Driving while License Suspended ticket (DWLI or DWLS), if convicted, you'll pay about $300 a year for three years -- on top of any court costs and fines.  Check with DPS for the current Surcharge Fees, since they can change.

Here's the kicker; if you don't pay the surcharge, DPS will suspend your Driver's License.

So how can you avoid license suspensions and drive legally if you owe Surcharges?  There are two main ways to drive legally if you owe high amounts of surcharges that you cannot pay off:

1) Contact DPS (who will put you in touch with MSB) to get on a payment plan for your surcharges. Within a couple days after establishing your payment plan, you're license will be reinstated (once Reinstatement Fees are also paid).  **HOWEVER, this method only works if you have NO OTHER suspensions on your Texas Driver's License.  If you have any other current suspensions, then your Driver's License will still be suspended.

2) Contact the Law Office of Robert Keates about an Occupational License.  An Occupational License allows you to drive legally during a suspension period, and (the best part) you do not need to have your Surcharges paid off to have one.

Check out http://keateslawfirm.com/practiceareas/driverslicense/hardshiplicense.php for more information, or contact us directly at 512-216-3211.

What will show up on my Texas Criminal Background Check and History?

The Internet has revolutionized methods by which employers can review potential candidates for a job.   With the simple click of a button, HR departments and employers can see your prior criminal history. In Texas, where jobs are hard to come by as it is, a criminal offense on your background check will most likely put you behind other candidates -- even less qualified ones.  It could even terminate your chances of being hired at all.

So what shows up on your Texas Background check?  The answer is not as simple as you might think.  First, it depends on who is running the background check, and where the information is coming from.

DPS and State Agencies.  DPS is the central storage center for all convictions and arrests in Texas.  Courts forward case information to them, and the, DPS sells the criminal information to third parties, which are typically Online Background Check businesses.  Yup, that's right: DPS is making money from criminal history data.  This database used to include Class C tickets as well, since they are technically (and still quite officially) Misdemeanor criminal offenses.  At the time of this writing, it seems DPS is no longer tracking Class C's, although that information still might be available through some of the other businesses or agencies below.

Internet Background Check sites.  Some possible employers or landlords (or colleges) use specific criminal history and background check companies, the majority of which are online.  One of the most popular is Intelius.com, where basically anyone can sign up and view criminal background history.

So what shows up on your criminal record (or a friend, co worker, etc...)?  The best way to determine that is to run your own check.  Many online sites can do a quick, instant search for just a couple dollars.  There are even sites that offer coupon codes for leading background check companies: for instance, try http://www.criminalbackgrounddetective.com/coupons-codes.php.

Otherwise, you can check with DPS, although they will require fingerprints and payment of close to $30 for the most complete background check.  You can find more information about that background check service at: http://www.lawofficeofrobertkeates.com/criminaldefense/expunge.php.

Expunctions, and Clearing your Record.  The most important reason to check your record is to see what  employers will see, and IF an offense shows up, DO something about it.  Whether your case is eligible for an Expunction, NonDisclosure, or Pardon, there are ways to clear and seal the offense from the public.  for more information, please visit: http://www.lawofficeofrobertkeates.com/expunctions/expunction.php

Medical Marijuana in Texas? Texas Marijuana Stamp Tax Act

Medical Marijuana in Texas currently (as of 2013) does not exist.  Because the Federal Government has no laws that allow for implimentation of a Medical Marijuana statute in the entire US, States have opted to enact their own Medical Marijuana Laws.  However, Texas has none.

It is not a defense to possession of marijuana in texas if you have an out of state medical marijuana prescription or license.  Let me repeat: It is not a defense in Texas if you have a medical marijuana prescription.  While another state may endorse Medical Marijuana, all controlled substances are still technically governed by Federal laws, and as such, there is no right to interstate commerce with Medical Marijuana Rx the way that Driver's Licenses can be used state-to-state while traveling.

Texas Marijuana Stamp tax Act

I believe Fox News ran a segment lately about the Texas Marijuana Stamp Tax Act.  How anyone who is interested in the legalization of marijuana happened to catch the segment on Fox news is beyond me, but people have been constantly calling, asking how to legally get their hands on some taxed, legal marijuana in Texas.  In short, you cannot.

How much are these stamps? Marijuana is listed at $3.50 per gram. What does that mean? It means you've paid a tax on marijuana, a still-listed controlled substance.  In a way, it's a bold admission of possession of Marijuana.  Not only do you intend on (and probably at that time) possess marijuana, but you've gone a step further to pay a State tax on it!  Unfortunatly, paying tax on contraband does not mean it's legal.  So the marijuana you've paid tax upon is still illegal according to the Texas Penal code.  

In fact, the Tax Code itself makes it plain as day that your taxed marijuana is still illegal, by indicating:

"Nothing in this chapter provides a defense or affirmative defense to, exception to, or immunity from prosecution under the penal laws of this state relating to controlled substances, counterfeit substances, simulated controlled substances, or marihuana."

Yes, for some reason Texas statutes and laws still refer to marijuana as "marihuana."

Another interesting question I've been asked: Is your information instantly turned over to law enforcement when you buy a stamp? Answer:  It's a class B misdemeanor for the comptroller to release a buyer's information, but since it appears that possession even with a stamp is still illegal it's difficult to say who has access to the information.

So, our advice:  Don't waste your money to pay taxes on an illegal substance or contraband, since it's still illegal, and don't think that your medical marijuana Rx is valid in any state or area other than the one issuing it to you.

Can I be Arrested for Giving Away Marijuana in Austin?

Can I be Arrested for Giving Away Marijuana in Austin?

Years ago, I represented a fellow who decided to stuff stockings with a small bag of marijuana and give them to friends for Christmas.  The case was not in Austin, and unfortunately for him, he was pulled over with the set of marijuana filled stockings in his backseat.  The officer said he could smell the marijuana right away; when the officer saw the marijuana gifts stacked neatly on the backseat, he actually laughed.

Comedy aside, my client was arrested for Sale of Marijuana (Delivery of a Controlled Substance, in Texas). Clearly packaged as gifts, we had little use of the common defense "I plan on smoking all of it myself."

Luckily, Texas law recognizes there is a difference between marijuana being sold and marijuana being given away.


Texas Health and Safety Code Section 481.120, entitled OFFENSE: DELIVERY OF MARIJUANA, indicates that

"a person commits an offense if the person knowingly or intentionally delivers marijuana."

The language in the code section above makes no distinction between how the marijuana is delivered; be it by selling, trading, or giving away.  But more information about giving away marijuana is listed in subsection (b). which reads:

"An offense under Subsection (a) is a Class B misdemeanor if the amount of marijuana delivered is one-fourth ounce or less and the person committing the offense does not receive remuneration for the marijuana;"

So not only must the marijuana be given as a gift without any type of remuneration -- which includes more than merely money -- the marijuana must also be a small amount.

What if a person gives away more than a 1/4 ounce of marijuana as a gift, and receives no remuneration ?  Well, I assume the legislature didn't bother with that scenario, since it would seem uncommon for individuals to be handing out -- for free -- large amounts of marijuana.  But, if a generous drug dealer did happen to be giving away larger amounts of marijuana, the conduct would be covered under the main statute.  Remember, the code makes it illegal to 'Deliver' marijuana in general, and only provides the subsection above to mitigate against very small amounts being transferred.  If you gave away larger amounts, you'd be on the hook for a Delivery of Marijuana offense.

A second interesting subsection makes selling small amounts of marijuana a misdemeanor.  It's a Class A misdemeanor if the amount of marijuana delivered is one-fourth ounce or less and the person committing the offense receives remuneration for the marijuana.

If you end up giving away, trading, delivering, or selling any amount of marijuana more than 1/4 an ounce, the offense is a State Jail Felony, punishable between 6 months in the county jail and up to two years in the State Jail -- day for day credits.  Larger amounts increase the level of felony, all the way up to  first degree felony.

New Arrest Warrant Search and Information Site for Austin, Travis County

A new Arrest Warrant information site has just been unveiled, at austinwarrantsearch.com.  Austin Warrant Search complies all arrest warrant information on one easy to use website, offering online databases for the Travis County Sheriff's Office as well as the Austin Police Department.

It also includes Del Valle jail information and directions, and a bail bond section explaining bonds and the process in Austin.

Suspended Driver's License Help in Texas

This is Texas; no subways, no light rail commuter tracks, and very little public transit when you get outside the major metropolitan areas.  So when DPS sends you a letter saying "Your Driver's License is now Suspended," what do you do? Well, you drive!

Obviously it's illegal to drive on a suspended or revoked license, but if you need to get from San Marcos to Austin everyday for work, you NEED to drive.  You don't have a choice except quit your job and work at the nearest store -- within walking distance.
But is that really an option?

But there are alternatives to driving illegally or walking.  You can get an Occupational License.  An Occupational License is a temporary driver's license that allows you to drive over a suspension.  That's right -- it allows you to legally drive when your license is suspended.

Sometimes called a Restricted License -- and with good reason -- the Occupational License lets you drive under a variety of conditions: to/from work, during your job, daily house hold chores, to the bank, supermarket, doctors, etc...  It also allows you to pick up and drop off your kids at school or daycare.  if you're a student, the Occupational License allows you to drive to and from your classes.

Almost everyone who has a suspended license is eligible; just a few categories are not.  Serious offenses such as Vehicular Manslaughter, multiple DWIs, and unpaid child support will make you ineligible.

You'll need a few things to get the Occupational License:

• a Lawyer to write the Petition/Order and setup the Hearing
• SR22 Insurance, even if you've never had a DWI
• DPS Reinstatement Fees - a money order with the total amout due, ready to mail off
• Money Order for $10 per year for the Occupational License
• Letter from Employer and 3 year driving record from DPS, along with a few other minor items.

You can call the Law Office of Robert Keates at 512-216-3211 for details, a free consultation, and a quote.  Turnaround for the license is about a week, so you can start driving legally in no time!

Open Container on a Weekend Drive in Austin? Think Again!

It's been a long week at work.  You need to unwind, to really feel that the work week is over and weekend has arrived.  You don't have time to stop at your favorite bar or tavern, so what's the next best thing?  grab a cold beer can from the gas station and have a few sips on your commute home.

This used to be a very common scenario in Austin, Travis County, and Texas in general, until a few years ago.  Prosecutors and private interest groups adamantly pushed for Open Container laws, despite the fact that there is nothing illegal about drinking and driving under the legal limit of .08% BAC.

But on your drive home each Friday (and some weekdays) you can still see some people, regardless of the laws, getting an early head start for the weekend.  Some don't even try to hide it.  Others at least pour the beer into a soda cup.  Either way, a person can find themselves in an expensive mess, should an officer pull them over.


Section 49.031 of the Vehicle Code provides that "Possession of Alcoholic Beverage in a Motor Vehicle," or simply an Open Container in a car, is illegal.  It's a Class C Misdemeanor, unless there's an open container during a DWI arrest (which then carries mandatory jail sentences).

Most people in Austin believe an Open Container just means a beer can or bottle that's open.  But lets take a look at the statute.  An "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.

So would an empty beer can from last week count? It might, if the officer can see any amount of liquid inside.  What about a re-corked bottle of wine you wanted to save after going out to a friends house last night?  Sure, that counts too, but there's a little more to the law.  Of issue if where the open container is located.

It's illegal to have an open container in the Passenger Area of the vehicle.  So what does the Passenger Area encompass?  "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. Pretty vague  right?  Luckily the statute clarifies a little bit by indicating the term does not include: (A) a glove compartment or similar storage container that is locked;
(B) the trunk of a vehicle; or (C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.

So those are the areas you should keep the alcohol you're transporting, if you don't want to get hit for an Open Container ticket.  Notice how those areas make it more difficult (if not impossible) for you to actually sample the beverage while driving.  Of course, even if you manage to stash the bottle or can when you're pulled over, chances are the officer saw you drinking from the open container while driving; unless you were stopped for another infraction.

With hefty fines and the potential of a conviction on your record -- not to mention giving officers probable cause to search you car and maybe find something worse than an open container -- it may be best to buy a whole 6-pack and wait until you get home.

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Check out more information about alcohol related offenses at: www.drunkinpubliclawyer.com, or www.lawofficeofrobertkeates.com.