Your Austin Lawyer

Driving While Texting

2009-09-30T09:39:00.000-07:00

I have observed drivers weave in out of a single lane of traffic aimlessly from time to time. The initial reaction is to think "is the driver intoxicated?" But countless times as I pass the driver that cannot control his/her vehicle from swerving, what I see is someone texting/emailing or using their iphone or other smartphone while driving. I have been guilty of this myself, and it is dangerous, and often times the driving habits of someone driving while texting mimic those signs of someone driving while intoxicated.

The New York Times has a great new interactive game that let's you test your reaction time when you text while driving. If you play the game below, try to actually read the text messages like you would one from a friend, and when you text an answer, don't just do whichever is shorter. The point of the "game" is not to win, but to just see potential consequences of texting while driving.

Interactive Game

Two new Texas laws reflecting phones are in effect: one banning teen drivers from using cell phones and text messaging devices; the other prohibiting drivers from using handheld cell phones in school crossing zones.

Legislation Update/New Texas Laws

2009-09-30T09:30:00.000-07:00

Some new traffic and criminal laws to be aware of:

SEATBELTS

House Bill 53

Requires all occupants of a vehicle, no matter their age, to be secured by a safety belt, no matter where they are seated in the vehicle; changes the definition of a passenger vehicle to include a passenger van designed to transport 15 or fewer passengers including the driver; removes the current exemption for third-party Medicaid transportation provisions regarding the use of child passenger safety seats; and prohibits a motorcycle operator from carrying a passenger under the age of 5 unless the child is seated in a sidecar attached to the motorcycle.

Senate Bill 61

Amends the existing statute regarding child passenger safety seats. The bill requires any child younger than 8 years of age be restrained in an approved child passenger safety seat unless the child is at least 4 feet 9 inches in height. The fine is no more than $25 for a first offense and $250 for a second offense. The law also creates a new court cost for conviction of an offense under this section to be collected and used by TxDOT to buy safety seats for low- income families. The law becomes effective today, but tickets for this offense cannot be issued until June 1, 2010. Police officers are allowed to issue a warning before that date.

DRIVING

House Bill 55

Makes it illegal to use a wireless communication device in a school zone unless the vehicle is stopped or a hands-free device is used. Cities or counties wanting to enforce this law must post a sign at the beginning of each school zone to inform drivers that using a wireless communications device is prohibited and the operator is subject to a fine. It is a defense to prosecution if the operator was making an emergency call.

House Bill 2730

Increases the penalties for driving while intoxicated with a child passenger by adding an automatic driver’s license suspension period for first-time offenders and an increased suspension period for repeat offenders. The driver’s license reinstatement fee for completing an education program will rise from $50 to $100. Closes a loophole so a person who commits an offense as a minor cannot circumvent the driver’s license penalty if the person turns 21 before their court date.

House Bill 2012

Creates two new punishment enhancements: a Class B misdemeanor if a person drives with a suspended license and without insurance; and a class A misdemeanor if the person driving without insurance or a valid driver’s license has an accident and someone is seriously injured or dies as a result of that accident.

Senate Bill 129

Authorizes neighborhood electric vehicles (NEVs) to be operated on roads with a posted speed limit of 45 miles per hour or less. The bill authorizes driver’s license holders to operate NEVs without having a motorcycle endorsement, clarifies that drivers and passengers in such vehicles are not required to wear helmets and specifies that enclosed three-wheeled vehicles as described in the bill are authorized to operate in preferential lanes.

MOTORCYCLES

Senate Bill 1967

Requires that applicants for an original class M license or class A, B or C driver license (including commercial driver licenses and permits) with authorization to operate a motorcycle, provide evidence of completion of an approved motorcycle operator training course. The law also increases the penalty for failure to yield the right-of-way if there is a crash that results in injury to a person other than the motorcycle operator.

VEHICLE INSPECTION

Senate Bill 589

Requires that a vehicle equipment safety compliance label be placed on a windshield, side or rear window stating that the window tinting complies with the appropriate provisions of the Transportation Code. Failing to place the required label on the vehicle could lead to a $1,000 fine.

DRIVER'S LICENSE

House Bill 2730

Requires that all applicants under the age of 18 take the driving skills exam to receive a driver’s license. The law also requires that a provisional driver’s license (under 18) or instruction permit expire on an individual’s 18th birthday, removes the requirement that a provisional driver’s license or instruction permit be renewed annually and increases the fee for those licenses from $5 to $15. It also extends the current phase-two restrictions for holders of a graduated driver’s license from 6 months to 1 year. These restrictions include limited night driving, prohibited use of wireless communication devices and a limited number of passengers.

House Bill 339

Increases the total hours of behind-the-wheel driving instruction a teen receives from 14 to 34 and creates an adult driver’s education requirement for applicants older than 18 and younger than 21.

Senate Bill 1317

Creates a six-hour driver’s education course required for driver’s license applicants 18 years of age or older. It also mandates that applicants 25 or under must submit to an approved driver’s education course. (Goes into effect March 1, 2010.)

Senate Bill 328

Gives DPS the power to suspend a minor’s driver’s license for failing a breath or blood alcohol test while operating a watercraft. Chapter 524 of the Transportation Code also clearly defines the suspension period for an individual who was under the age of 21 at the time when the offense of boating under the influence or driving under the influence of alcohol occurred. The law also increases the reinstatement fee for a license suspended under sections 49.04-49.08, Penal Code from $50 to $100.

House Bill 2730

Increases the driver’s license sanction from a one-year CDL license disqualification to a lifetime disqualification if a person uses a motor vehicle to transport, conceal or harbor an alien. If a child is engaged in conduct involving a severe form of trafficking persons, a judge at a juvenile hearing is required to order the juvenile’s driver license or permit to be suspended.

House Bill 2730

Prohibits DPS from issuing a driver’s license or identification card to a person who has not established a domicile in Texas. The law specifies that an applicant may receive a driver’s license at a post office box only if the applicant’s residence address has also been provided, with some exceptions.

CONCEALED HANDGUN

House Bill 2730

Amends numerous provisions regarding concealed handgun licenses (CHLs), including eliminating student loan defaults as a disqualifier, to clarify that DPS must suspend or revoke a license when the licensee becomes ineligible and mandating that a magistrate suspend a CHL held by the subject of an emergency protective order.

House Bill 2664

Provides a defense to prosecution if a concealed handgun license holder carries a concealed handgun into an establishment that gets 51 percent or more of its income from the sale of alcoholic beverages, but has failed to post the statutorily required notice that it derives 51 percent or more of its income from the sale of alcoholic beverages. (Under current law, a concealed handgun licensee can be charged with a Class A misdemeanor for doing this.)

House Bill 2730

Removes DPS authority to suspend a concealed handgun license (CHL) for the holder’s failure to display the CHL to a peace officer on demand. It removes associated penalties and suspensions for the failure to display.

CRIME

House Bill 558

Allows minors to be charged with public intoxication.

House Bill 2386

Allows courts to immediately seal juvenile criminal records if the juvenile successfully completes a drug court program, or another special program ordered by the court.

House Bill 1282

Makes it a Class B misdemeanor to steal a driver’s license, commercial driver’s license or personal identification.

Senate Bill 554

Makes it illegal to own or possess dog-fighting equipment and establishes that such equipment and property where dogs are found to be engaged in dog fighting is contraband and is subject to forfeiture. The law also makes dog fighting subject to the elevated penalties authorized in the Texas Penal Code, Section 71.02(a), in an effort to deter organized criminal activity.

House Bill 1813

Makes it a third-degree felony to tamper with forensic, medical, chemical, toxicological and ballistic reports, as well as reports of certification, inspection or maintenance of instruments used to examine or test physical evidence. (Currently, someone who does this can only be charged with a state jail felony.)

House Bill 358

Allows law enforcement authorities to store only a small part of gambling machines that have been seized, instead of storing the whole machine. They would be able to remove and store just the computer chips in gambling machines, which are the core of the machines and contain the information necessary for prosecutions to go forward.

REGISTERED SEX OFFENDERS

Senate Bill 689

Restricts Internet usage by certain registered sex offenders, and requires registered sex offenders to provide information about their e-mail addresses when they register.

MISCELLANEOUS

House Bill 2730

Increases the fine for a parking violation at the state Capitol from $10 to $25, and increases the late fee from $2 to $5.

Senate Bill 1188

Authorizes a Texas resident to buy firearms, ammunition or firearms accessories in any other state, not just those contiguous to Texas, to reflect updated federal statutes.

Source: Texas Department of Public Safety

A few new Texas laws

2009-08-31T13:50:00.000-07:00

Starting tomorrow we will have a batch of new laws. I will do my best to to add as many of the relevant new laws as I can in the next few posts.

Here's some of the ones that will impact everyone:

All passengers in every vehicle will have to wear a seat belt, no matter how old they are or where they are in that vehicle.

There is a new booster seat requirement for kids in vehicles, it's no longer kids under five but it's kids under eight, or shorter than 4'9".

Teenagers trying to get their first driver's license will have to get 34 hours of behind-the-wheel driving instruction, and they will have to take a driving skills test in addition to the written test.

Using a hand held phone while driving through an active school zone becomes illegal, however, local authorities can only enforce the new restriction if signs announcing the ban are posted at the beginning of each school zone.

What is a Walk-Through?

2009-07-28T08:03:00.000-07:00

Sometimes we throw around words or terms that we are accustomed to in our legal field, but that mean nothing to our client. One of those phrases is a "Walk-Through."

At it's most basic definition, a walk through is a process of self-surrendering with a get out of jail card in hand. For example, if you have a warrant for your arrest in Travis County for let's say Assault Bodily Injury. You can either 1) wait to get arrested, and then hire an attorney or pay a bail bonds company to get you out of jail or 2) be proactive and hire an attorney to get your bond signed as soon as you know there is a warrant.

If you go with option number 2, the process is as follows:

1. You hire an attorney to do a walk through.

2. The attorney gets a bond signed for your warrant.

3. You and your attorney then schedule a time for you to turn yourself in, along with your bond/get out of jail card.

4. The jail then books you so that they can get your information, such as picture, thumbprint and so on.

5. After the process is complete, you go home, and your warrant is no longer active and you did not spend a night in jail, get put in jail clothes, or go to actual jail. The process can take anywhere from 30 minutes to 2 hours depending on the number of self surrenders on that particular night.

6. Once the warrant has been taken care of with a walk through, you are not at risk for being arrested for that particular warrant and you and your attorney can begin the defense of your criminal charge without a night in jail.

The Iphone to calculate your BAC?

2009-07-16T10:09:00.000-07:00

What can't this Iphone do? (Well until yesterday mine couldn't get reception, but that's a different story).

The clever named Application and Website is called "RUPISSED?" The website and application for your iphone features a blood alcohol calculator that guesstimates your BAC level depending on your honest answers to the variables. The website also features other valuable information about Alcohol, Hangover cures, and some other somewhat useful and entertaining information on topic.

And to make sure my post is also somewhat education, below is a brief overview of how a breathalyzer works.

How can a person's breath show how much that person has had to drink?

Alcohol that a person drinks shows up in the breath because it gets absorbed from the mouth, throat, stomach and intestines into the bloodstream. Alcohol is not digested upon absorption or chemically changed in the bloodstream. As the blood goes through the lungs, a physiologically predictable amount of the alcohol will moves across the lung membranes and into the lungs themselves.

Once in contact with the air in the lungs, it evaporates and is exhaled. The concentration of the alcohol in the air in the lungs is directly related to the concentration of the alcohol in the blood.

The ratio of breath alcohol to blood alcohol is 2100 to 1 (and called the partition ratio), so the alcohol content of 2100 milliliters of exhaled air will be the same as for 1 milliliter of blood. The maths are simple from there and leads to blood alcohol readings expressed as a percentage of alcohol in the blood.

The partition ratio can vary between 1700 and 2400 depending upon the individual and local environmental conditions, leading to a breath analysis reporting either a higher or lower calculated blood alcohol reading.

Since it is a physiological response, the partition ratio can be raised or lowered by:

Body Temperature: The widely used blood-to-air partition ratio of 2100 is based on a normal body temperature of 98.6°F. A higher body temperature of the individual will overestimate the actual BAC because of the higher volatility (or vapor pressure) of liquids like alcohol at a higher temperature. An elevation in body temperature of 1°C (1.8°F) results in a 7% higher value in the result since the air in the lungs will contain an artificially higher amount of evaporated alcohol. Therefore, a person with a body temperature of 100.4°F, and with an actual blood alcohol of 0.0935%, will register a value of 0.10% by the breath test. Be careful if you have a cold or the flu.

Cellular Composition Of Blood: Blood contains suspended cells (e.g. red and white cells) and proteins, and is therefore only a partial liquid. The partition ratio of 2100 is based on an average cell volume 47%. Some of this cell volume is tissue, and at 47% cell volume, 81.5% of the blood volume is liquid in which the alcohol is actually dissolved. A person with a lower cell volume will have a falsely elevated blood alcohol level based on a breath test since the amount of alcohol in 2100ml of lung breath will be dissolved in a slightly higher amount of liquid, and hence have a lower concentration. Cell volume values range from 42% to 52% in males, and 37% to 47% in females. This variability will only have a small impact on BAC (ranging from -2% to +5%) so don't rely on it in court.

Factors Affecting Breathalyser Accuracy- Breathalysers only estimate the BAC, not physically measure it, so several factors can cause the breathalyser to give either an artificially higher or lower reading. The most common are:

Body temperature and blood composition as outlined above.

Some breathalysers can't differentiate between ethyl alcohol and other compounds of a simple chemical nature. Methyl compounds such as acetone and ketones can be present in the breath of diabetics and those taking dietary supplements, causing the breathalyser to over-estimate the BAC. Similarly vinegar can cause confusion with some of the older or dumber breathalysers. Envronmental substances in the vicinity of the breathalyser including compounds found in lacquer, paint remover, celluloid, gasoline, and cleaning fluids can also effect the reading in older breathalysers.

Breathalysers assume that the alcohol concentration in the breath will be the same as in the blood, and that the breath is sourced from deep in the lungs, but the breath alcohol concentration can be increased by vomit or blood in the mouth, acid reflux, or simply having had a drink recently with alcohol residue from that drink still being in the mouth at the time of testing. Mouthwash or breath freshener often contain alcohol, so don't use these in an attempt to disguise the smell of alcohol when being pulled over.

Electrical interference from cell phones and police radios.

By law, police breathalysers are required to be calibrated for a particular ambient operating temperature, and nearly all are. The problem comes in areas that experience cold winters - while the breathalyser may be calibrated for the correct outside temperature, if its taken out of the nice warm patrol car and used immediately it will not have had enough time to cool down to its calibrated operating temperature and will give an artificially high reading.

Absorption of alcohol into the blood may lag actually drinking it by as much as 1-2 hours so even though you may have alcohol in your breath, if you've only consumed it recently it may not be in your bloodstream in the concentration that testing your breath indicates.

Question & Answer

2009-06-25T12:42:00.000-07:00

Question: “I’m on probation and I got arrested last night for a public intoxication. I’m really scared. What is going to happen?I would be off probation actually this month….will this effect it?”

Any new arrest can affect your probation as it is considered a violation of probation. A probation officer has the discretion to give a probationer a warning, or to make him appear before a court for a “probation violation” hearing. If the latter is done, the probation officer can ask the Judge to extend your probation for more time, or add extra conditions such as more community sesrvice or classes, or ask that your probation be revoked and ask for your placement in jail. If the violation is serious (the same level or higher than your original offense), your probation may be revoked completely and confinement in jail imposed, usually that requires a bigger violation than a public intoxication.

by: Law Office of Florencia Rueda,PLLC
905 West Oltorf, Suite D Austin, Texas, 78704
(512) 415-7648

How to Avoid a Bond Forfeiture

2009-06-23T07:40:00.000-07:00

If you have bonded out of jail, either through a personal bond or a surety bond, that bond can be revoked and an order for your arrest can be mandated if you have forfeited your bond. I often get hired to help a client after they have already acquired a bond forfeiture. They tell me about their case, and more times then not the initial charge is a minor infraction that could have been handled easily in court, if only they would have gone to court. After I explain to my clients the process of bond forfeitures and how to go about setting them aside, and all the fees associated with it, my clients then realize that what was once an easy case is now a bit more complex. So before it gets to that point, I will do my best to explain 1) How to avoid a bond forfeiture and 2) the consequences of having a forfeiture.

Show up to All Court Dates

A condition of your bond is that you be present to each one of your court dates. It is your responsibility to attend court and not be late, even if your attorney is going to court for you as well. That is why it is very important that you be aware of all of your pending court dates and times. If you fail to show up for your court date in a misdemeanor case the judge can forfeit your bond, increases the amount of the bond and issues a warrant for the your arrest.

However, if you fail to show up for your Felony case the consequences are more severe. The District Attorney could file a felony Bail Jumping charge. This is unlikely where only one court date is missed and through counsel you quickly gets your case back on the docket in good standing. Under Texas Penal Code, Section 38.10, Bail jumping is a third-degree felony punishable by two to ten years in prison, and/or a $10,000 fine.

Complete all Conditions

Sometimes a condition of a personal bond will be to do counseling classes, or to have ignition interlock installed in your vehicle. Of course, a given condition is to not commit any new offenses while out on bond, so a new offenses can also result in your bond being forfeited. If there is a condition of your bond, and you do not complete that condition in the time allowed, a judge may revoke your bond, issue a forfeiture, and order a warrant for your arrest.

Bond Forfeiture Civil Suits

Once your bond is forfeited you not only face a warrant and (usually) at least some time in jail, you also face a civil suit to recover the amount of the bond forfeited. As a general rule, the Travis County Attorney’s Office will file a civil suit against 45 days after the bond forfeiture is entered.

A civil suit can be avoided if the bond forfeiture is set aside within 30 days of its issuance. However, if the forfeiture is not set aside, the County Attorney’s Office will file the civil suit and start the clock ticking for settlement of the suit. Typically, the fees for settling a civil bond forfeiture lawsuit are the costs of filing the suit, the State’s attorney fees, and, in most cases, 5 percent per month of the amount of the bond. These fees are in addition to the cost of hiring your own attorney to handle the settlement.

If you already know that your bond has been forfeited, you should hire an attorney as soon as possible to set the forfeiture aside, stop or settle the civil suit, and get your case back on the docket.

By: Law Office of Florencia Rueda, PLLC
905 West Oltorf, Suite D,
Austin, Texas, 78704
(512) 415-7648

More Rights for You (and your car).

2009-06-10T09:59:00.000-07:00

The United States Supreme Court recently issued a ruling that modifies the search incident to arrest doctrine, rejecting a broad reading allowing officers to always search a citizens vehicle incident to arrest. In the new rulying, Arizona v. Gant, — U.S. —, 2009 WL 1045962, the Court overturned the search incident to arrest of Rodney Gant’s car after Gant was arrested for driving with a suspended license, handcuffed and secured in the back of a patrol car. With several officers at the scene, officers found cocaine in Gant’s car during the search incident to the driver license arrest.

The Court held that a search of the passenger compartment of a vehicle following an arrest is allowed “only if [1] the arrestee is within reaching distance of the passenger compartment at the time of the search or [2] it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”

You may read the case here: GANT CASE

Theft by Check

2009-04-17T09:55:00.000-07:00

Theft by check cases are most commonly associated with either checks that are written on a closed account or checks written when there was insufficient funds. The punishment level and offense level depend on the amount of the hot check. Theft by check offenses can range anywhere from a Class C misdemeanor to a 1st Degree Felony.

These cases are rare in that I often convince clients not to hire me to defend them for these matter. It is certainly not because I desire not to help, but instead because in Travis County, hot check cases can get dismissed if you pay restitution and take an 8 hour class. Restitution involves paying off the balance of the checks plus collection fees to the court. Therefore, it is often counterproductive to spend money on an attorney when you can put that same money towards restitution and get the case dismissed without acquiring more debt through attorney fees.

That is not to say that there are not times when hiring an attorney for your theft by check is indeed advisable. For example, if your check book gets stolen and you end up being charged due to forged checks. In that event or a similar circumstance, paying restitution and taking a class for an offense you did not commit is certainly not advisable. Instead you would want to make sure you hired an attorney to properly defend your case.

If you believe you may have a warrant for a theft by check case in Travis County, you may call the Travis County Attorney's Office Hot Check Division at 512-854-9574 or perform a warrant search on the Travis County Website https://public.co.travis.tx.us/wow/default.aspx.

As always, the applicable Texas law concerning this offense is below.

TEXAS PENAL CODE - 32.41. Issuance of Bad Check

(a) A person commits an offense if he issues or passes a check or
similar sight order for the payment of money knowing that the issuer
does not have sufficient funds in or on deposit with the bank or other
drawee for the payment in full of the check or order as well as all
other checks or orders outstanding at the time of issuance.

(b) This section does not prevent the prosecution from establishing
the required knowledge by direct evidence; however, for purposes of
this section, the issuer's knowledge of insufficient funds is presumed
(except in the case of a postdated check or order) if:
(1) he had no account with the bank or other drawee at the time he
issued the check or order; or
(2) payment was refused by the bank or other drawee for lack of
funds or insufficient funds on presentation within 30 days after
issue and the issuer failed to pay the holder in full within 10
days after receiving notice of that refusal.

(c) Notice for purposes of Subsection (b)(2) may be actual notice or
notice in writing that:
(1) is sent by:
(A) first class mail, evidenced by an affidavit of service; or
(B) registered or certified mail with return receipt requested;
(2) is addressed to the issuer at the issuer's address shown on:
(A) the check or order;
(B) the records of the bank or other drawee; or
(C) the records of the person to whom the check or order has been
issued or passed; and
(3) contains the following statement:
"This is a demand for payment in full for a check or order not paid
because of a lack of funds or insufficient funds. If you fail to make
payment in full within 10 days after the date of receipt of this notice,
the failure to pay creates a presumption for committing an offense,
and this matter may be referred for criminal prosecution."

(d) If notice is given in accordance with Subsection (c), it is presumed
that the notice was received no later than five days after it was sent.

(e) A person charged with an offense under this section may make
restitution for the bad checks. Restitution shall be made through
the prosecutor's office if collection and processing were initiated
through that office. In other cases restitution may be, with the
approval of the court in which the offense is filed:
(1) made through the court; or
(2) collected by a law enforcement agency if a peace officer of
that agency executes a warrant against the person charged with
the offense.

(f) Except as otherwise provided by this subsection, an offense under
this section is a Class C misdemeanor. If the check or similar sight order
that was issued or passed was for a child support payment the obligation
for which is established under a court order, the offense is a
Class B misdemeanor.

(g) An offense under this section is not a lesser included offense
of an offense under Section 31.03 or 31.04.

TEXAS PENAL CODE 31.06 - Presumption of Theft by Check

(a) If the actor obtained property or secured performance of service
by issuing or passing a check or similar sight order for the payment
of money, when the issuer did not have sufficient funds in or on
deposit with the bank or other drawee for the payment in full of the
check or order as well as all other checks or orders then
outstanding, it is prima facie evidence of his intent to deprive the
owner of property under Section 31.03 (Theft) including a drawee or
third-party holder in due course who negotiated the check or to
avoid payment for service under Section 31.04 (Theft of Service)
(except in the case of a postdated check or order) if:
(1) he had no account with the bank or other drawee at
the time he issued the check or order; or
(2) payment was refused by the bank or other drawee for
lack of funds or insufficient funds, on presentation within 30 days
after issue, and the issuer failed to pay the holder in full within
10 days after receiving notice of that refusal.

(b) For purposes of Subsection (a)(2) or (f)(3), notice may
be actual notice or notice in writing that:
(1) is sent by:
(A) first class mail, evidenced by an affidavit
of service; or
(B) registered or certified mail with return
receipt requested;
(2) is addressed to the issuer at the issuer's address
shown on:
(A) the check or order;
(B) the records of the bank or other drawee; or
(C) the records of the person to whom the check or
order has been issued or passed; and
(3) contains the following statement:
"This is a demand for payment in full for a check or order not
paid because of a lack of funds or insufficient funds. If you fail
to make payment in full within 10 days after the date of receipt of
this notice, the failure to pay creates a presumption for
committing an offense, and this matter may be referred for criminal
prosecution."

(c) If written notice is given in accordance with Subsection
(b), it is presumed that the notice was received no later than five
days after it was sent.

(d) Nothing in this section prevents the prosecution from
establishing the requisite intent by direct evidence.

(e) Partial restitution does not preclude the presumption
of the requisite intent under this section.

(f) If the actor obtained property by issuing or passing a
check or similar sight order for the payment of money, the actor's
intent to deprive the owner of the property under Section 31.03
(Theft) is presumed, except in the case of a postdated check or
order, if:
(1) the actor ordered the bank or other drawee to stop
payment on the check or order;
(2) the bank or drawee refused payment to the holder on
presentation of the check or order within 30 days after issue;
(3) the owner gave the actor notice of the refusal of
payment and made a demand to the actor for payment or return of the
property; and
(4) the actor failed to:
(A) pay the holder within 10 days after receiving
the demand for payment; or
(B) return the property to the owner within 10
days after receiving the demand for return of the property.

By: The Law Office of Florencia Rueda, PLLC, (512) 415-7648

Twitter Evidence - The Next Exhibit

2009-03-30T14:41:00.000-07:00

Myspace, YouTube, and Facebook have already been used as tools for evidence-gathering for police officers, prosecutors and defense attorneys. It won't be long before Twitter is used as evidence against a defendant.

Twitter and other social networking sites have already made it easier in proving certain elements of a crime. One of the elements required in most criminal offenses is the element of Intention. Intent can be difficult to prove since it requires knowing someone's mental process. Now however, these social networking sites allow people to do just that - get in your head.

The ability to constantly update one's specific whereabouts, intentions, and activities, may seem tempting, but just remember that by doing so you are also making it easier for law enforcement to know your whereabouts, intentions, and activities.

Twitter responsibly.

By: Law Office of Florencia Rueda, PLLC
905 West Oltorf, Suite D
Austin, Texas 78704
(512) 415-7648

Possession of Marijuana – it’s not a traffic a ticket.

2009-03-25T12:21:00.000-07:00

Recently, I saw on the news people in Austin being interviewed about the “new cite and release law” regarding possession of marijuana in Austin, Texas. The “new law” is really not so new, what is new is the fact that the Austin Police Department will be adapting the law that was passed in 2007.

The law has been in effect since September of 2007. The law simply offers police a choice to issue a citation to offenders for a handful of low-level class A and B misdemeanor crimes – including certain criminal mischief and graffiti charges, driving under a suspended license, and possession of up to 4 ounces of marijuana. After seeing the news broadcast, and the reactions, I have decided I would clear up a few misconceptions regarding the “new law.”

The law does not eliminate jail time as a punishment possibility for any misdemeanors, including possession of marijuana. Possession of Marijuana is still punishable by jail time. Less than 2oz (class b) can receive punishment of up to 180 days while 4oz > 2oz (class a) can receive up to 1 year in jail.

The law (and the implementation of it) does not change the offense or category level for possession of marijuana or any other misdemeanors. The only change is that instead of spending a night in jail before being released on a personal bond, you are given a written citation telling you to appear in court.

So to those that were happy because they thought that POM (Possession of Marijuana) was now only a class c traffic offense, I’m sorry. And to those that are upset because they think that POM is now decriminalized, well it’s not.

By: Law Office of Florencia Rueda, PLLC
905 West Oltorf, Suite D
Austin, Texas, 78704
(512) 415-7648

Stop vs Encounter

2009-03-10T11:18:00.000-07:00

Many of my clients ask me "What right does a cop have to stop me on the street?" and more importantly "What rights do I have when a cop approaches me?"

The answer depends on what kind of interaction the Police officer is having with you. There are 3 kinds of possible interactions that a Police Officer can have with a citizen: 1) An Encounter, 2) A Detention, 3) An Arrest.

An Encounter

If there is no reason for an officer to believe that a crime has occurred and he approaches a citizen in public, this is considered An Encounter. The courts have also defined an encounter as "whether a reasonable person would feel that they were free to leave the situation as governed by an objective standard." If the cop car lights are on, you are in handcuffs, or the cop tells you that you cannot leave, then chances are it is not an encounter because a reasonable person would not believe they are free to leave.

During an encounter with a police officer, you are free to walk away, free to ignore his questions and not respond to the officer at all. The reason for this is because the officer has no right to detain you if he has no reason to believe that a crime is afoot or that the public welfare is in danger.

You have the right to terminate an encounter with a police officer unless you are being detained in police custody, or have been arrested. Say to the officer, "I have to be on my way. Am I free to go?" If he says "Yes," leave. If he says "No," it is not an encounter, and he needs either reasonable suspicion to detain you or probable cause to arrest you.

A Detention

Now, If a police officer has “reasonable suspicion” that criminal activity is afoot he may then detain you and investigate you long enough to confirm or dismiss his suspicion. Under the law, a police officer has "reasonable suspicion" if he or she is able to articulate facts of criminal activity. This can be running a red light, committing small traffic violations, etc. Reasonable suspicion is a low burden for a police officer to meet.

If you are being detained, then you do not have the right to walk away from the officer. You are required to ID yourself if the police officer request you do so. However, that does not mean you have to give the officer consent to search your car or person. But, if the officer believes his safety is at risk, he may briefly pat you down to make sure you do not have weapons. Besides identifying yourself, you are not under any obligation to answer the officers question without an attorney. You are not obligated to give the officer consent to search your car, person, or belongings. This includes when you are stopped for a DWI, you are not required to do the field sobriety test and you may refuse.

An Arrest

If an officer has probably cause to believe that you have committed or are committing a criminal offense, then that officer has the right to arrest you.
Probable cause means that given all the circumstances, a crime probably occurred. Although Probable cause is a higher burden that reasonable suspicion, it is still a relatively low burden for the officers to meet. Once you are arrested, the officer cannot interrogate you unless he has read to you your Miranda rights, which include your right to remain silent and your right to an attorney. If you have been arrested and are being interrogated, you have the right to immediately ask for an attorney and refuse to answer any questions until you have your attorney present.

Use your rights

It is important to know your rights when dealing with a law enforcement officer. Protecting and making use of your rights during either an encounter, detention, or arrest can help you tremendously in the long run. You have the right to ask for an attorney, not consent to searches,and refuse to answer investigatory question until you had the opportunity to have your attorney advise you.

As always, please feel free to call The Law Office of Florencia Rueda, PLLC at (512)-415-7648 if you or a loved one has been arrested in Austin or simply have questions about your rights.

Assault Family Violence

2009-02-26T12:19:00.000-08:00

One of our firms most common types of cases we handle involve people accused of domestic violence. You often hear that anyone and everyone can be accused or arrested for DWI, well the same goes for domestic violence. People accused of this charge are young, old, male, female, working class, professional, married, single, etc. Some times these charges develop because there are issues managing ones anger. But very frequently, my clients are falsely accused.

Police officers are usually called to a disturbance that they did not witness. What ends up happening is that the police officer hears two-stories, believes one, or none, and arrests someone. Sometimes, the person arrested is in fact the victim and not the aggressor.
And other times it takes nothing more than a mere accusation of physical abuse to cause a criminal case to be filed.

Most often with these cases the victim/family member does not want their spouse/family member or significant other to get in trouble and wishes to “drop” the charges. The problem is, that the alleged victim can’t just drop the charges the way you see on TV.

Once the alleged aggressor is arrested, it is up to the State of Texas, as to whether they wish to proceed with the case. And most of the time, the state wishes to proceed. It does not need or require the alleged victim’s permission to proceed with the case. In fact, the alleged victim can jump and yell and scream that they want the charges dropped, and the State of Texas can and most often does continue with the charges.

The consequences of a family violence arrest in Texas is a maximum jail confinement of up to one year in jail, and a maximum fine of $4,000.00.

If you have been charged with domestic or family violence, you should contact a criminal lawyer as soon as possible. The consequences of a conviction for an assault family violence can haunt you for the rest of your life. If you are convicted, you will have a lifelong criminal record that will make it more difficult for you to get a job. Additionally, if you are ever accused of another family violence crime, then you will be arrested on a felony charge the second time around.

If you have been charged with an assault family violence in Travis County contact the Law Office of Florencia Rueda, PLLC at 512-415-7648.

Failure to ID

2009-02-24T12:21:00.000-08:00

We have often found that because of fear, our clients end up getting arrested in situations they would normally end up in simple citations. Most frequently, their fear clogs their judgment and they end up giving law enforcement a fake name. The most common scenarios and reasons in which this happen are:

1. Afraid because underage and don’t want parents to find out.
2. Afraid even though there is no reason to be.
3. Afraid for immigration reasons.
4. Afraid for outstanding warrants.

The logic our clients tell us is that if the cop takes them at their word, then they wont be in trouble a) under their real name, b) for outstanding warrants, c) for immigration, d) parents wont find out.

The logic above fails. Where you might have just been let go with a speeding warning, or class c ticket of some sort, or nothing at all, you are now arrested with a misdemeanor that carries with it jail time.

Below is the Texas Code that outlines and defines what constitutes Failure to ID and the punishment ranges for the offense.

§ 38.02. FAILURE TO IDENTIFY.

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
(c) Except as provided by Subsections (d) and (e), an offense under this section is:
(1) a Class C misdemeanor if the offense is committed under Subsection (a); or
(2) a Class B misdemeanor if the offense is committed under Subsection (b).

(d) If it is shown on the trial of an offense under this section that the defendant was a fugitive from justice at the time of the offense, the offense is:
(1) a Class B misdemeanor if the offense is committed under Subsection (a); or
(2) a Class A misdemeanor if the offense is committed under Subsection (b).
(e) If conduct that constitutes an offense under this section also constitutes an offense under Section 106.07, Alcoholic Beverage Code, the actor may be prosecuted only under Section 106.07.

One of our firms most common types of cases we handle involve people accused of domestic violence. You often hear that anyone and everyone can be accused or arrested for DWI, well the same goes for domestic violence. People accused of this charge are young, old, male, female, working class, professional, married, single, etc. Some times these charges develop because there are issues managing ones anger. But very frequently, my clients are falsely accused.

Police officers are usually called to a disturbance that they did not witness. What ends up happening is that the police officer hears two-stories, believes one, or none, and arrests someone. Sometimes, the person arrested is in fact the victim and not the aggressor.
And other times it takes nothing more than a mere accusation of physical abuse to cause a criminal case to be filed.

Most often with these cases the victim/family member does not want their spouse/family member or significant other to get in trouble and wishes to “drop” the charges. The problem is, that the alleged victim can’t just drop the charges the way you see on TV.

Once the alleged aggressor is arrested, it is up to the State of Texas, as to whether they wish to proceed with the case. And most of the time, the state wishes to proceed. It does not need or require the alleged victim’s permission to proceed with the case. In fact, the alleged victim can jump and yell and scream that they want the charges dropped, and the State of Texas can and most often does continue with the charges.

The consequences of a family violence arrest in Texas is a maximum jail confinement of up to one year in jail, and a maximum fine of $4,000.00.

If you have been charged with domestic or family violence, you should contact a criminal lawyer as soon as possible. The consequences of a conviction for an assault family violence can haunt you for the rest of your life. If you are convicted, you will have a lifelong criminal record that will make it more difficult for you to get a job. Additionally, if you are ever accused of another family violence crime, then you will be arrested on a felony charge the second time around.

If you have been charged with Failure to ID in Travis County contact the Law Office of Florencia Rueda, PLLC at 512-415-7648.

Expunctions & Keeping Your Record Clean

2009-02-18T13:16:00.000-08:00

Many people have the misconception that if their case is dismissed, the records no longer exist. Unfortunately, getting the case dismissed does not mean that the records disappear. The fact that you were arrested will still show up on criminal background checks unless you take the necessary steps to ensure they are obliterated. That necessary step is to file a petition for Expunction.

An expunction is the process of having records of arrest permanently hidden from public view. Failure to obliterate an expunged record is a class B misdemeanor. Yes, the law actually requires that expunged records be "obliterated." If your record is expunged you can deny ever being arrested (unless you are under oath in a criminal case, in which case you may answer that the case was expunged).

So, who qualifies for an expunction?

Chapter 55 of the Texas Code of Criminal Procedure contains the requirements and procedures to properly expunge records in Texas. To sum up the code below, you may qualify if your case was dismissed, you were found Not Guilty by a judge or jury, or you were convicted but later pardoned.

Call The Law Office of Florencia Rueda, PLLC, at 512-415-7648 today to find out if you qualify for an expunction.

Art. 55.01. RIGHT TO EXPUNCTION. (a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or

(B) convicted and subsequently pardoned; or

(2) each of the following conditions exist:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:

(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or

(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;

(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and

(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.

Alcohol Related Offenses in Texas

2009-02-15T11:53:00.000-08:00

Alcohol related offenses can range from class c level offenses with no jail penalties to offenses where the penalty is a maximum of one year in jail. If you or a loved one has been charged with an alcohol related offense it is important to know your rights and the consequences of having a conviction for one of these offense. Please call the Law Office of Florencia Rueda, PLLC today to find out how we can help. 512-415-7648.

Furnishing Alcohol to a Minor

(a) Except as provided in Subsection (b) of this section, a person commits an offense if he purchases an alcoholic beverage for or gives or with criminal negligence makes available an alcoholic beverage to a minor.

(b) A person may purchase an alcoholic beverage for or give an alcoholic beverage to a minor if he is the minor's adult parent, guardian, or spouse, or an adult in whose custody the minor has been committed by a court, and he is visibly present when the minor possesses or consumes the alcoholic beverage.

(c) An offense under this section is a Class A misdemeanor punishable by a maximum of year in jail and a maximum fine of $4,000.00.

Minor in Possession

a) Except as provided in Subsection (b) of this section, a minor commits an offense if he possesses an alcoholic beverage.

(b) A minor may possess an alcoholic beverage:

(1) while in the course and scope of the minor's employment if the minor is an employee of a licensee or permittee and the employment is not prohibited by this code;

(2) if the minor is in the visible presence of his adult parent, guardian, or spouse, or other adult to whom the minor has been committed by a court; or

(3) if the minor is under the immediate supervision of a commissioned peace officer engaged in enforcing the provisions of this code.

(c) An offense under this section is punishable as provided by Section 106.071 of the Texas Beverage Code.

Minor in Consumption

(a) A minor commits an offense if he consumes an alcoholic beverage.

(b) It is an affirmative defense to prosecution under this section that the alcoholic beverage was consumed in the visible presence of the minor's adult parent, guardian, or spouse.

(c) An offense under this section is punishable as provided by Section 106.071 of the Texas Beverage Code.

Driving while Intoxicated

2009-02-08T13:26:00.001-08:00

Note: Call the Law Office of Florencia Rueda to find out how we can help defend you against your DWI. Phone: 512-415-7648.

Below is a brief outline of the various court settings that I can assist you with when you or a loved one has been charged with a DWI.

Administrative License Revocation (ALR):
Within 15 days of the time you were served with a Notice of Suspension you must request a hearing to contest your license suspension. When you hire our firm for your DWI, we will also aggressively defend you during the ALR hearing by questioning the arresting officer at the hearing to save your license from being suspended. However, if your license is suspended, you may be granted an occupational license which allows you to drive to places such as work, school, or the grocery store. If you do not request a hearing, the suspension will go into effect 40 days from the date the notice was sent. A fee of $125 will be charged to reinstate the license after the suspension period expires.

First Appearance:
A first appearance in court will be requested usually 30 days after your arrest or release for a DWI. If you have retained our firm, we will make this appearance for you, so that you don't have to attend..

Pretrial Conference:
During this setting, about 8 to 10 weeks after the first appearance, we discuss your case with the Prosecution and begin negotiations to get the best possible outcome.

Pretrial with Witnesses:
If after careful investigation and research our firm finds that your constitutional rights have been violated, we will file motions to exclude evidence which could be used to incriminate you.

Trial:
If you decide to take the case to trial, you may request either a bench trial where the court, (Judge) hears your case or a jury trial where the jury decides whether or not you are guilty.

If you need an attorney to defend you against this charge contact our office immediately at 512-415-7648. Our office is located at 905 West oltorf, suite D, Austin, Texas, 78704.

by: Law Office of Florencia Rueda, PLLC

24 Hour Jail Release

2009-02-08T13:15:00.001-08:00

NOTE: If You Are Trying To Get Someone Out of the Travis County Jail immediately, please call our office immediately at (512) 415-7648. We know it is important to get your loved one out of jail as soon as possible so we work around the clock to help.

How Bail is Set:

After booking the defendant, the arresting officer files a probable cause affidavit with the court which is basically an abbreviated police report of the allegations against the defendant. The judge reads this report, and checks the defendant’s criminal history. After reading the police officer's report and looking at the defendant's criminal history, the judge determines the bail amount based primarily on the seriousness of the allegations against the defendant and the defendant's criminal history. At that point, the judge sets a bail amount.

For misdemeanors in Travis County, bail is often set as low as $500 for hot check cases, and as high as $10,000 or more for family violence assaults. Most first time DWI bail amounts will be between $1500 and $3000, if the defendant has no prior arrests. There is no set schedule for this though; so the amount may be higher depending on the judge that initially reviews the case.

Anyone arrested on a DWI or assault charge, is usually arrested without a warrant. That means, in order to get out of jail they first must see a judge, who sets the amount of their bond and then they can post the bond. There are several types of bonds that can be posted.

Once a bond amount has been set, there are four ways to be released from jail. These are Cash Bonds, Personal Bonds, Lawyer Assisted Bonds and Surety Bonds.

Cash Bonds:

This method requires one to deposit with the jail the full amount of the bond. Travis County Jail will only accept cashier’s checks or money orders in the amount of the bail, cash is not accepted.

Since the bond is usually set in the thousands, it can be difficult for friends and loved ones to come up with this kind of money quickly. Additionally, the bond money will not be returned until the case is resolved – which could easily take a year or even longer.

Personal Bonds:

Travis County PreTrial Services Office will often interview an arrestee, to see whether they qualify for a personal bond. If they do qualify, the person will only be required to pay a $20 PR Bond fee to the office.

This is the cheapest way to get out of jail, however, it too is often not the best option for the recently arrested person. Since Pretrial Service Office uses very strict criteria to determine if a person is eligible for a personal bond, very often, a person will not be approved for a Personal Bond unless an attorney is retained. Additionally, without the assistance of an attorney, Pretrial Service can take over 10 hours to approve someone for a personal bond, which is a long time for a person to sit in jail when they could be released much sooner.

Lawyer Assisted Bonds:

There are several ways that I as a lawyer can help you get out of jail.

First, I am often able to speed up the Personal Bond Process. Even if PreTrial Services wouldn’t have turned in a bond until sometime in the afternoon, I am usually able to speed that process up and get it turned in sometime shortly after 8 A.M. This can save the client many unpleasant hours in jail.

Second, sometimes, pretrial services has denied the person a personal bond but they have said that they will reconsider that denial, if the person hires an attorney. I can help your loved one obtain the personal bond that they would not otherwise qualify for without an attorney.

Third, if the client was not going to qualify for a personal bond, I can often get a percentage cash deposit bond approved. In most cases, this money can be applied towards the fee I charge to represent the person in court. Call The Law Office of Florencia Rueda now at 512-415-7648.

Surety or Bail Bonds:

Bail bond companies typically charge at least 15-20% of the bond amount to get someone out of jail. One thing to remember when hiring a bondsmen is that the money used to pay a bondsman can never be applied to the attorney’s fees in a case.

Call now for help in getting your loved one released. Our phones are answered 24/7. Call The Law Office of Florencia Rueda now at 512-415-7648.

Rueda Law Office

2009-02-08T12:58:00.000-08:00

Florencia Rueda has the resources and know how to handle all phases of your case, whether you have been charged with a misdemeanor DWI, an assault or family violence crime, or serious felony offenses such as aggravated assault, aggravated robbery, robbery, burglary of a habitation, or burglary of a building. Our firm will work tirelessly to ensure the best possible outcome for your case.

Our firm is flexible when payment plans are needed, and we are also available to meet with clients outside of regular business hours if necessary. Simply call to discuss if special arrangements need to be made. Contact the Law Office of Florencia Rueda today for a free consultation. 512-415-7648

Located at:
905 West Oltorf, Suite D,
Austin, Texas 78704