General Information About Criminal Offenses
What is the difference between a felony and a misdemeanor?
When someone commits a crime, our society has deemed that they must be punished. How much punishment depends on how serious the crime. To help determine the seriousness, the crime is called either a "felony" or a "misdemeanor". Felonies are more serious crimes, and misdemeanors are less serious crimes. Both can also result in imprisonment.
Felonies and misdemeanors are usually given a name, number, or letter explaining how serious the crime is. In the State of Texas, the most serious crime is a "Capital felony", and the least serious crime is a "Class C misdemeanor". The order is: Capital felony, 1st, 2nd, and 3rd degree felonies, state jail felony, and Class A, B, and C misdemeanors.
Punishment is based on this system, and can result in jail time, a fine, or both. The jail time both felonies and misdemeanors are based upon their class. Most punishment will include a fine, which is either negotiated by the attorney or set by a judge or jury.
With a few exceptions, the fine structure in the State of Texas is as follow:
Felonies may not exceed a fine of $10,000
Class A misdemeanors may not exceed $4,000
Class B misdemeanors may not exceed $2000
Class C misdemeanors may not exceed $500
Please note that the punishment for a crime in state courts depends on several factors, including, but not limited to, the offender's criminal record, his or her age, their involvement in the crime itself, and the crime itself.
Another important difference between a felony and a misdemeanor conviction is the impact that they will have on a person's future. When that person makes it out of jail and tries to get a job, a felony conviction will likely continue to haunt the offender. Most employers want to know about all felony convictions. If an offender has a misdemeanor, they will have some more privacy in this respect.
What are typical punishments for felonies and misdemeanors?
The jail time in the State of Texas for felonies is based upon their class according to the following chart:
Capital Felony - Death or life
1st Degree felony |
5-99 years or life |
2nd Degree felony |
2-20 years |
3rd Degree felony |
2-10 years |
State jail felony |
180 days-2 years |
Misdemeanors are also given jail time in accordance with their class according to the following chart:
For a class A misdemeanor |
up to 1 year |
For a class B misdemeanor |
up to 6 months |
For a class C misdemeanor |
fine only |
What is the difference between a state crime and a federal crime?
There are two separate U.S. court systems: state and federal. Laws and procedures differ somewhat among the two. Essentially the state always has jurisdiction in a criminal case unless it falls under a federal exception. A federal exception occurs if a crime takes place on federal property such as a post office, or falls under a federal statute. Federal crimes include drug crimes, treason, mail fraud, kidnapping, bank robbery and violations of the Patriot Act. The FBI is responsible for arresting persons suspected of a federal crime.
A federal crime may have violated state laws as well, but the case will be prosecuted in federal court. A federal crime must have been indicted by a grand jury or brought before a judge to determine if there is enough evidence for the federal crime to be tried.
Penalties for federal crimes are more severe than those for state crimes. The judge does not have discretion in choosing a sentence but must follow a sentencing grid with penalties based on the type and severity of the crime as well as the severity of the offender's prior record if one exists. A person convicted of a federal crime is not eligible for parole. Sentences are served in a federal prison instead of a state prison, meaning that the offender can be sent to another state to serve their time - making it more difficult for family to visit.
When should I accept a plea bargain?
It is impossible to provide a general answer to this question. In deciding whether to accept a plea bargain, the two most important things to consider are to make sure you understand all the consequences of the plea bargain and to make sure you have confidence that your lawyer is doing everything possible to represent you.
You should never accept a plea bargain before consulting a criminal defense attorney. When a defendant accepts a plea bargain and agrees to plead guilty to some of the charges, that defendant is admitting guilt and the court will enter a conviction against that defendant. Pleading guilty to a charge results in a conviction for that charge.
Your lawyer might be able to persuade prosecutors that there are good reasons why charges shouldn't be filed against you. Perhaps there is a legal reason why the law doesn't apply to your factual situation. Perhaps there are weaknesses in the evidence that law enforcement officials have overlooked. Perhaps there are others who are more criminally responsible than you are. For a variety of reasons, an attorney might be able to convince the authorities that you should not be the focus of their investigation.
An experienced criminal defense attorney can assess whether a plea bargain is the best solution for you under your circumstances and negotiate for the best deal possible.
What is parole?
Also called "conditional release." Parole is the release of certain inmates from incarceration to continue serving their sentences in the community under varying degrees of supervision.
What is the difference between "Straight Probation" and "Deferred Adjudication Probation"?
With "straight probation," even if an offender has successfully completed the probationary period, they are considered to be convicted of the offense for which they have been placed on probation. On the other hand, if they are placed on "deferred adjudication probation" and successfully complete the probationary period, the charge against them is dismissed and there is no conviction.
Some lawyers tell clients that if they complete "deferred adjudication probation" they will not have "a record". This is not exactly true. There will be "a record" that they entered a plea to the charge and were put on "deferred adjudication probation" and this can have an effect for such things as applying for a permit to carry a weapon or calculating their criminal history in federal court. Still, they will not have "a conviction" and can truthfully answer "no" on job applications and alike if asked if they have ever been "convicted" of an offense.
If they are placed on "straight probation," they are sentenced to a particular term in jail or prison and that term is probated for a particular period (for example, a sentence of 180 days probated for two years is a possible sentence for a first time DWI conviction). If they then violate "straight probation" and the probation is revoked, they can be incarcerated up to the original jail or prison term that was imposed (in the above DWl example, the sentence would be up to 180 days in jail if probation was revoked). If they are placed on "deferred adjudication probation," they are not sentenced to a particular jail or prison term at the time the "deferred adjudication probation" is imposed. If they violate the "deferred adjudication probation" and the probation is revoked, the judge may sentence them to any term provided by law at the time of the revocation.
General Information about DWI/DUI
What is .08 alcohol concentration?
"Alcohol concentration" is defined by the statute as:
the number of grams of alcohol per 100 milliliters of blood;
the number of grams of alcohol per 210 liters of breath; or,
the number of grams of alcohol per 67 milliliters of urine.
If you've been drinking, you will probably not be able to determine if you have an alcohol concentration of .08 or more. Furthermore, it is worth knowing that the amount of alcohol in each of the above statutorily defined concentrations is not equal, and can therefore result in a person being innocent according to one concentration but guilty according to another. Moreover, under the two statutory definitions of intoxication, it is also possible for a person to be innocent of being intoxicated because there is no loss of either normal mental or physical faculties but still be guilty of being intoxicated via .08. The opposite can also be true.
Is it .08 or more when I drive or .08 or more at the time I'm tested, or both, that will make me guilty of DWI?
Texas law only provides that the crime of DWI occurs when a person drives, and at that time, has an alcohol concentration of .08 or more in their body. It is not a crime to have an alcohol concentration of .08 in the body either before or after one has driven, as long as the driver still had the normal use of their mental and physical faculties while driving. However, depending on the time the test is conducted, such an alcohol concentration may be relevant, but not necessarily accurate, in determining if the person had a .08 or more alcohol concentration when the actual driving occurred.
The timing of the particular test in question can present significant problems for both the prosecution and the defense in the trial of a DWI case. This dilemma arises because .08 alcohol concentration testing is hardly ever done at or immediately after driving. Generally, an alcohol concentration test is usually administered approximately 45 minutes to 1 hour and 15 minutes after driving. Consequently, unless there is information about the number of alcoholic drinks consumed, the type of drinks consumed, and knowledge of when the drinks were consumed, it is scientifically impossible to determine if the person was over, or more importantly for the innocent, under a .08 alcohol concentration at the time of driving.
Should I submit to a breath test?
Many non-intoxicated persons are legitimately stopped for a traffic offense and thereafter arrested for DWI. You should never, ever submit to any type of alcohol test if pulled over. You have a statutory right to refuse these tests. You also should not answer any questions about how much you may have drunk. Simply say that you do not want to answer any questions without your attorney present.
By submitting to the test you may be providing the police with evidence they can use to convict you. If you tell them that you will not take the test without a lawyer present, they will treat your comment as a refusal and so will the Court. From a legal perspective, a refusal is easier to deal with than a documented test result that puts you over the legal limit.
If you do refuse the tests, you will be arrested. This is in your best interest. An arrest is not a criminal conviction, but simply an administrative procedure. After an arrest, you should consult a defense attorney. You should not submit to any tests or questioning until your attorney is present.
If I am arrested will I lose my driver's license?
If you take the breath test and the machine registers over .08-breath alcohol concentration, DPS will attempt to suspend your license for 90 days for a first DWI arrest.
If you refuse to take the breath test after having been arrested for a DWI, then the DPS will attempt to suspend your license for 180 days.
Your license cannot be automatically suspended upon arrest for suspicion of DUI, no matter what the police may threaten. The issue of whether to suspend your license is subject to a separate civil hearing called an ALR (Administrative License Revocation hearing.) You should immediately consult your attorney to prepare for your ALR. You have 15 days from the time of your arrest or you will have waived your right to that hearing. If you do not request the hearing within 15 days then your license will automatically be suspended 40 days after you were arrested.
What if I need to drive during the suspension period?
You are required to obtain a restricted driver license during this suspension period. Your attorney can help obtain an "occupational license" that allows you to drive for twelve hours per day. You can pick the twelve hours that you want to drive.
In some instances your attorney can help you obtain a license that allows you to keep a driving log in your car. This log allows you to drive when needed as long as the hours do not reach more than twelve hours in any one-calendar day.
How do I get my license back?
Within 30 days of obtaining the Order from the Court for a restricted license, the driver must file that license with the Department of Public Safety in Austin along with various documents and fees. Your attorney will assist you with the documents and process. When your suspension period is over, your regular license will go back into effect.
Does it make a difference if I'm under 21?
Yes. A person under 21 arrested for DWI will be treated differently mostly in regard to your driver license. Driver license restrictions and suspensions are more severe for a person under 21 arrested and convicted of DWI. A person who is under 21 will have a one-year suspension period even if they receive probation for a DWI. Thus, they may need a restricted driver license for one year.
What to do if you suspect you have a problem
Warning Signs That You May Have A Problem With Drugs Or Alcohol
You can't predict whether or not you will use drugs or get drunk.
You believe that in order to have fun you need to drink and/or use drugs.
You turn to alcohol and/or drugs after a confrontation or argument, or to relieve uncomfortable feelings.
You drink more or use more drugs to get the same effect that you got with smaller amounts.
You drink or use drugs alone.
You have trouble at work, school or home because of your drinking or drug use.
You make promises to yourself or others that you will stop getting drunk or using drugs.
You have injured yourself or another person while using drugs or alcohol.
You have experienced problems with the criminal justice system as a result of using drugs or alcohol.
If you have experienced any of these warning signs, you are urged to seek treatment Ð for your sake and the sake of those around you. If you have been arrested for an alcohol or drug related offense, please call an attorney. Hank Judin understands the complex issues surrounding the abuse of alcohol and drugs and its impact on you and your family. His compassionate and non-judgmental approach to handling alcohol and drug offenses steers you through the court system and provides options, if you desire, for a long-term solution to your problem.
Alcohol & Drug Offenses
DWI (Driving While Intoxicated)
Driving While Intoxicated (DWI) is a criminal offense that says a person may not operate a motor vehicle in a public place while "intoxicated". The DWI statute does not say driving while drunk.
A person need not be drunk to be "intoxicated" but a person who is drunk must be intoxicated, meaning that a person may be intoxicated because of substances other than alcohol, but if a person is stopped while under the influence of alcohol, they must meet legal requirements for being legally intoxicated.
Texas Law defines "Intoxicated" as:
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; or having an alcohol concentration of 0.08 or more.
It is important to realize that .08 an hour after the arrest does not necessarily mean that the person was at/above .08 when he or she was actually driving. This is particularly true if the driver's last drink was immediately prior to the time that they were stopped by the police.
DWI/DUI is based upon alcohol, drugs, prescription medication or non-prescription medication, inhalants, or a combination of these impairing substances.
Drug Offenses
In Texas, there are various drug offenses. Variables include the type of drug involved as well as whether one is accused of selling, distributing, or possessing controlled substances. The range of punishment and sentencing options differ depending on the nature of these variables. Of course, there are various federal drug offenses as well with similar variables.
Hank Judin has successfully been defending citizens charged with drug and alcohol offenses for more than two decades. His compassionate and nonjudgmental approach provides options for his clients and clients' families above and beyond that of most criminal defense attorneys.
