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.

DWI in Texas: Can you get a DWI from Prescription Drugs in Texas (No Alcohol DWIs - Drugged Driving)

In Texas, DWI laws are changing each year, often to make penalties and punishments more sever for DWI offenders, as well as creating more ways for law enforcement to make arrests.  I often receive calls about DWI arrests where no alcohol was involved -- but instead, the person was arrested for DWI based on a Prescription Medication.

Lunesta is one of the most common I see, although many other narcotics -- all legal with prescription -- have led to arrests and in many cases, convictions for DWI.

Texas Law specifically states, "

"Intoxicated" means: not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body."

Which means, DWI's are not limited to alcohol any longer, and include drugs -- even a legal, prescribed medication.

However, a non-alcohol DWI is far harder to prove than alcohol DWIs.  First, the prosecutors won't have much to go on if they don't test your blood, and I've seen many cases where blood is not tested.  Without blood results (which would show traces and potentially, depending on the test, the metabolites of the drug in your system) then the prosecutors must attempt to prove the case on circumstantial evidence.  They'll show that you were on a medication, or admitted to being on a prescription at the time of driving, and will point to driving errors or errors on the field sobriety tests to show impairment.

There is no legal limit, in terms of a numerical value, for medication DWI.  In other words, while it's prohibited to drive with more than .08% of alcohol in your system, leaving the prosecution to rely heavily on "impairment" in general.  Often they argue that any impairment is enough to prove DWI, but it's important to note that impairment must rise to the degree that it interferes with the ability to drive.  And that, is more difficult to prove to a jury than merely being over .08%, as in an Alcohol DWI.

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.

Medical Marijuana and Texas: Will your Medical Marijuana Prescription/License be valid in Texas?

Medical Marijuana is now legal in many States, including: Alaska, Arizona, California, Colorado, Connecticut, DC, Delaware, Hawaii, Maine, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

So what happens if you move from one of those states, with a Medical Marijuana License or Card, and move to Austin, Texas?  Is the Medical Marijuana card legal, and can you possession marijuana for medical purposes?  What about cannabis you already had and brought with you?

Unfortunately, the answer to all of the above is a short "no."  In Texas, Cannabis and Marijuana is illegal, regardless of whether another state issued the Cannabis Prescription.  Below, I've listed some frequent questions people ask me:

My Medical Marijuana card is legal and the same as any other medication; Why is it illegal in Texas?  Under the US Constitution, each State may enact their own laws and control their own boundary's, as long as that law does not interfere with or counter a federal law.  Texas does not need to comply with other State laws, unless that law involves a certain right that has been incorporated by the federal government (such as most of the bill of rights).  Currently, Medical Marijuana is not one of those specific incorporated rights, so Texas is free to regulate Marijuana as they wish.

Is it a defense against a POM Arrest if I have the Medical Marijuana card? No, it is NOT a defense. Marijuana is very much illegal in Texas, and if you're unlucky enough to be caught outside of Austin, Travis County, you can end up in jail and/or on probation.  In Travis County, you can usually (with an Attorney) work out a decent plea bargain, but it'll be costly and time consuming.

Can I still grow plants in Texas like I did in California (or any other state)?  No, Cultivation of Cannabis is still illegal in Texas.

What about my Federal Right of Interstate Travel and other rights that allow me to move in the USA? Marijuana Possession is still illegal under Federal Laws, including both interstate travel and intrastate possession.  Because of this, there is no right of interstate travel and other federal rights that you might have with other things, like a Driver's License, etc...

Do Drug Test Cleansing Kits Really Work for Marijuana?

Clients ask all the time -- How can I Beat a Drug Test?  I've listed my disclaimer at the bottom of this post, but I wanted to focus mainly on two methods that DO NOT work, since I obviously don't want to see my clients or former clients trying these methods and testing positive for Marijuana (or whatever).

And, just because there is far more information on the Internet than I can provide, I've listed the following links so you can read more about Drug Tests:

1. THC Quick Test for Marijuana 
2.  Real Powdered Urine 
3.  XXTRA CLEAN 
4.  Clear Choice Purifying Shampoo  

*3rd party sites/links. Not affiliated with Us and we have no info on them aside from the links.


Drinking Water to Pass a Drug Test
While this method absolutely worked in the past with urine tests, there has been a huge advance in technology both in the private sectors as well as government crime and testing labs; it's really amazing how sophisticated drug testing methods have become since the 1980s.  Today, drug labs and other testing facilities measure for specific gravity, pH, creatine levels, and temperature.

As an added issue, most courts and probation offices now indicate that a diluted test will be treated as a positive test.  All that means is that they report the diluted test to the Court, who might, if you're on probation, violate you and send you off to jail.  Potential employers may frown upon multiple diluted tests as well.

So obviously water does not work.  Try the following Internet Advertisers for more options:
THC Quick Test for Marijuana
 Real Powdered Urine
 XXTRA CLEAN
 Clear Choice Purifying Shampoo  
*3rd party sites/links. Not affiliated with Us and we have no info on them aside from the links.

Drinking Baking Soda and Water to Pass a Drug Test
Some people feel that drinking a mixture of baking soda and water will give a clean drug test.  Baking Soda is a natural chemical found lakes, mineral deposits, and water.  Most likely, the myth that Baking Soda offers a clean drug test probably came from the superb cleansing properties found in baking soda.  I have never heard of this method working, despite being great for cleaning up spills on the carpet.

So (and this part is my disclaimer), the only tried and true way to test clean is to not use drugs for the time period you're being tested.

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.

Penalties for Marijuana Use, Possession, Sale, and Delivery in Austin Texas

         Penalties: Marijuana Possession in Texas:

Marijuana Possession:

Possession of less than 2 oz*	Class B Misdemeanor	Penalties include incarceration for a period of up to 180 days with a fine of $2,000
Possession of between 2 oz and 4 oz*	Class A Misdemeanor	Penalties include incarceration for a period of up to 1 year with a fine of $4,000
Possession of between 4 oz and 1 lb*	State Jail Felony	Penalties include incarceration for a period of 180 days to 2 years, with a fine of $10,000
Possession of between 1 lb and 5 lbs	State Jail Felony	Penalties include incarceration for a period of 180 days to 2 years, with a fine of $10,000
Possession of between 5 lbs and 50 lbs	Felony of the Third Degree	Penalties include incarceration for a period of 2 to 10 years with a fine of $10,000
Possession of between 50 lbs and 2,000 lbs	Felony of the Second Degree	Penalties include incarceration for a period of 2 to 20 years with a fine of $10,000
Possession of greater than 2,000 lbs	Felony	Penalties include incarceration for a period of 5 to 99 years with a fine of $50,000
*First-time offenders with less than one pound of marijuana in their possession will face mandatory drug treatment as part of their sentence and will avoid incarceration if not previous criminal record exists.

Sale:

Gifting up to ¼ oz	Class B Misdemeanor	Penalties include incarceration for a period of 180 days with a fine of $2,000
Sale of up to ¼ oz	Class A Misdemeanor	Penalties include incarceration for a period of one year with a fine of $4,000
Sale of between ¼ oz and 5 lbs	State Jail Felony	Penalties include incarceration for a period of 180 days to 2 years with a fine of $10,000
Sale of between 5 lbs and 50 lbs	Felony of the Second Degree	Penalties include incarceration for a period of 2 to 20 years with a fine of $10,000
Sale of between 50 lbs and 2,000 lbs	Felony of the First Degree	Penalties include incarceration for a period of 5 to 99 years with a fine of $10,000
Sale of greater than 2,000 lbs	Felony	Penalties include a mandatory minimum sentence of incarceration for a period of 10 to 99 years and a fine of $100,000
Sale to a minor	Felony	Penalties include incarceration for a period of 2 to 20 years with a fine of $10,000
Sale in an area within 1,000 ft of a school or in an area within 300 ft of other specified places	Misdemeanor or Felony	Sentencing will be determined by the amount of marijuana found, and incarceration period and fine will be increased to the next level

Paraphernalia:

Possession of paraphernalia	Cass C Misdemeanor	Penalties include a fine of up to $500
Sale of paraphernalia	Class A Misdemeanor	Penalties include incarceration for a period of 1 year with a fine of $4,000
Sale of paraphernalia to a minor (greater than 3 years younger than the seller)	State Jail Felony	Penalties include incarceration for a period of 180 days to 2 years with a fine of $10,000