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Results from the 81st
Legislative Session
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TABLE OF CONTENTS
SEAL YOUR DEFERRED
ADJUDICATION.........................................................
DEFERRALS FOR
VETERANS............................................................................
CHILD SAFETY
SEATS..........................................................................................
TALKING ON CELL PHONES IN A SCHOOL CROSSING
ZONE....................
NEW DWI SURCHARGE
RELIEF.........................................................................
MANDATORY DWI BLOOD
DRAWS.................................................................... |
SEAL YOUR DEFERRED ADJUDICATION
Under the right circumstances, after you complete your deferred
adjudication probation you can ask the court for an order of
non-disclosure. The order allows you to legally deny the occurrence of the
arrest and prosecution. The arrest records are sealed and you need not
disclose your arrest record to prospective employers, landlords, or anyone
else that may ask about the arrest record.
You can request the non-disclosure order immediately after discharging
from most misdemeanor deferred adjudications. On felony offenses, the
order can be requested 5 years after discharge. You are not eligible if
you have a conviction for any other offenses after the discharge of the
case.
Many job applications and licensing applications ask whether or not you
have been convicted of a crime. The Legislature just passed House Bill
2808 which prohibits a licensing authority from considering a person to
have been convicted of an offense if the person successfully completed
deferred adjudication. However, this provision does not apply if the
person is an applicant for or the holder of a license that authorizes the
person to provide law enforcement or public heath, education, or safety
services.
DEFERRALS FOR VETERANS
We will have to keep an eye on this one: Senate Bill 1940 provides the
commissioners court the authority to establish a veterans deferred
prosecution program whereby if a veteran successfully completes a veterans
court program, the court shall dismiss the case.
CHILD SAFETY SEATS
When traveling in a passenger vehicle, the law used to be that children
younger than 5 and less than 36 inches in height had to be in a in a car
seat. The law has been amended to require car seats for any child younger
than 8, unless the child is taller than four feet, nine inches. Violation
of this law will cause the driver to be fined not more than $25 for the
first offense and not more than $250 for a second or subsequent offense
“Child passenger safety seat system” means an infant or child passenger
restraint system that meets the federal standards for crash-tested
restraint systems as set by the National Highway Traffic Safety
Administration.
TALKING ON CELL PHONES IN A SCHOOL CROSSING ZONE
It is now a Class C misdemeanor to use a wireless communication device
within a “school crossing zone” unless the vehicle is stopped or the
wireless communication device is used with a hands-free device. The bill
also prohibits a school bus operator from using a wireless communication
device under any circumstance unless the vehicle is stopped.
“School crossing zone” means a reduced-speed zone designated on a street
by a local authority to facilitate safe crossing of the street by children
going to or leaving a public or private elementary or secondary school
during the time the reduced speed limit applies.
NEW DWI SURCHARGE RELIEF
There is now some relief from DWI Surcharges. A person convicted of
Driving While Intoxicated is required to pay a minimum $1,000.00 surcharge
each year for 3 years following a conviction. The surcharge is increased
to $1,500.00 each year for 3 years if the person is convicted of a second
DWI within 36-months of the prior DWI. If a person’s blood, breath, or
urine test shows an alcohol concentration of 0.16 or higher, the surcharge
is increased to $2,000.00 each year for 3 years.
Failure to pay will cause
the person’s driver’s license to be suspended.
The new law allows a convicted DWI defendant to request a waiver of
surcharges if the defendant can prove that they are unable to pay. This
new law may even allow some defendants who are currently paying surcharges
to avoid these expensive payments. Additionally, drivers can get points
for good driving to reduce penalties.
MANDATORY DWI BLOOD DRAWS
DWI BREATH AND BLOOD TESTS:
Law enforcement is allowed to collect a blood specimen from a driver in
any DWI when the driver refuses to submit to a breath or blood alcohol
test and the officer obtains a search warrant from a judge to take blood.
The police also have the authority to take blood without a warrant if you
are arrested for DWI, you refuse to voluntarily take a breath or blood
test, you caused an accident, and any individual died or suffered serious
bodily injury.
Senate Bill 338 expands that authority by allowing the police to forcibly
take blood without a warrant when a person other than the driver suffers
bodily injury (which includes just a complaint of pain) as a direct result
of an accident and the injured person has been transported to a hospital
or medical facility for medical treatment.
Law Enforcement shall also forcibly take blood in a DWI without a search
warrant if:
• There is a child under the age of 15 in the car;
• The driver has a prior conviction for DWI with a child passenger;
• The driver has a prior conviction for Intoxication Assault or
Intoxication Manslaughter; or
• The driver has two or more prior convictions for DWI, Flying While
Intoxicated, Boating While Intoxicated, or Operating an Amusement Ride
While Intoxicated.
The new law also requires the Police to obtain a sample of your blood on
any felony DWI or Boating While Intoxicated arrest.
Note: Throughout Texas the police have instituted what they call
“No Refusal Weekends.” During these weekends, if a driver refuses a breath
test, the police will obtain a warrant to take blood without consent. This
applies even to first time DWI drivers.
KNOW YOUR RIGHTS: If the police take your breath or blood, the law
allows you to request to have a physician or nurse take an additional
specimen of your blood for later testing. Make sure the request is made on
video or in writing and do not sign anything unless your request and the
time it was made is recorded. The police are supposed to allow you a
reasonable opportunity to contact such individual for the independent
test. |
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David B. Frank
Attorney And Counselor At Law
The Penthouse Condominiums
1212 Guadalupe Street, Suite 103
Austin, Texas 78701
Tel. 512-499-0969
Fax. 512-499-8220 |
"Board Certified in Criminal Law by the Texas board of Legal Specialization"
Reproduction of any material on this site without written
permission is strictly prohibited.
© Copyright
2002-2009 David Frank, Attorney at Law. All Rights Reserved. |
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