Bruce Kaye Criminal Defense Attorney Dallas, TX, Personal Injury, Entertainment Law

STATE CRIMINAL DEFENSE

Fear. Anxiety. Panic.

These are the normal core emotions that you will feel when you have been arrested. What will happen to my family? Will I lose my job? How will I pay my bills? Your mind can’t stop picturing the worst. For over 25 years, I have helped Texans who have been accused of either state or federal offenses alleviate these core emotions with the goal of returning you to your life before you were charged with an offense.

STATE CRIMINAL DEFENSE ATTORNEY IN DALLAS, TX

In matters of state criminal defense, it is crucial for me to take the time to thoroughly prepare for each case. The key to winning trials is to be more prepared than the prosecutor. I spend quality time gathering up all of the evidence, meeting with the witnesses and filing legal motions in order to win.

BRUCE KAYE, ATTORNEY AT LAW

State Offenses

In state court, experience matters.  In fact, based on my prior experience, I have even been  appointed as a Special Prosecutor in Dallas County, Texas on a murder retrial. I work to obtain the best results possible. Sometimes, that means obtaining the best plea bargain offer to keep charges off of my client’s record. Other times it means a full on trial utilizing the latest technology to enforce your visual story.

For over 25 years, I have helped defendants charged with almost every known offense including murder, sexual assault (adults and children), robbery, family violence, animal cruelty, possession and/or intent to manufacture or distribute controlled substances, and many, many more.

State Offenses & Punishments

The Texas Penal Code has a full list of intoxication and alcohol offenses  The most common include:

  • PC 49.02  Public Intoxication 
  • PC 49.04  Driving While Intoxicated (DWI)
  • PC 49.045 Driving While Intoxicated with Child
  • PC 49.06  Boating While Intoxicated   
  • PC 49.07  Intoxication Assault – 
  • PC 49.08. Intoxication Manslaughter

The essential elements of a DWI offense are : (1) intoxication (2) operation of a (3) motor vehicle and (4) in a public place. 

Intoxicated means:

  • a) not having the normal us of your mental faculties by reason of the introduction of any substance into your body or
  • b) not having the normal use of your physical faculties by reason of the introduction of any substance into your body or
  • c) having a blood alcohol concentration (BAC) greater than a 0.08

It’s not just limited to alcohol.  The Texas Penal Code states “intoxicated with alcohol or other substances” so you can be prosecuted if you use a controlled substance, a legal prescribed drug, or a dangerous drug. 

Penalties:

Your first DWI is classified as a Class B Misdemeanor. The range of punishment for all Class B Misdemeanors is up to 180 days in county jail and up to a $2000 fine. Typically, there is a minimum term of confinement of 72 hours for all DWI offenses (you can usually probate the 72 hours).  Also, you will lose your license for a period of time (but you can usually get an Occupational License which will allow you to drive to work, school, doctor, church, etc…).

Your second DWI is a Class A Misdemeanor and will result in a minimum term of confinement of 30 days (usually one only serves the first 72 hours and the balance is not served) and mandatory interlock installation on your vehicle. In addition, the offense is considered a Class A Misdemeanor.

Your third DWI is classified as a third degree felony (can face a jail sentence of 2-10 years incarceration) and you can expect some jail time even if you get probation

Also, take note that the  86thTexas Legislative Session (HB 2048, 86th Texas Legislative Session) added additional fines for all offenses that relate to the operating of a motor vehicle while intoxicated.  Here’s the bad news:

  • (1) $3,000 for the first conviction within a 36-month period;
  • (2) $4,500 for a second or subsequent conviction within a 36-month period; and
  • (3) $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

If convicted of a third DWI felony, you will have to give up your gun, and you will lose your right to vote until Texas restores voting privileges to felons.  You are also labeled a “felon” which will make your life very difficult (finding a good job, renting an apartment, etc…)

Another thing to consider is your drivers license.  Typically once they arrest you for a DWI, the officer will take your license and give you a paper license which is only good for 40 days unless you request an ALR Hearing.  You only have 14 days to request the ALR Hearing. If you refuse to take the breath test, and you don’t request the ALR Hearing on time (or if you lose the Hearing) your license will be suspended for 180 days to up to two years, depending on the circumstances.  Again, you can apply for an Occupational License. 

The main difference between a DWI and a DUI is really the age of the person accused.  A DUI is only applicable to you if you are under the age of 21.  If you are 21 years and a day old or older, then you will be charged with a DWI.  Unlike a DWI, you can be convicted of a DUI if you have as little as 0.01 Blood Alcohol Concentration (BAC).  You can find more information in the Texas Alcoholic Beverage Code, Title 4 Section 106.041.

Intoxication Assault typically occurs when the police say that you are drunk or on drugs and then get into a car accident.

Section 49.07 of the Texas Penal Code states:

(a) A person commits an offense if the person, by accident or mistake:

  • (1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or
  • (2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.

This section of the code is intended to deter you from drinking and driving because you can be charged even if you did not intentionally injured anyone.  It can be a mistake or an accident that injuries another person and you can still be charged with Intoxication Assault.  Technically, you can be charged even if you are not driving a car.  Texas Penal Code 49.01 sections 3-6 defines “vehicle” under the Intoxication Assault statue as an airplane, an amusement ride, a watercraft (think jet ski or boat) and of course, a motor vehicle.

To charge you with Intoxication Assault,  the State must prove that you  caused serious bodily injury to another person with a vehicle. Serious bodily injury means that the person injured faced a substantial risk of death, that the person has suffered or will suffer permanent disfigurement or that the injured person will now have an impaired body part or organ.

Penalties:

Intoxication assault is a felony DWI of the third degree, which can result in a fine up to $10,000 and 2 years to 10 years in the Texas Department of Criminal Justice, and a driver's license suspension ranging from 180 days to 2 years.

The offense of Intoxication Manslaughter is included in Chapter 49.08 of the Texas Penal Code and is defined as follows:

(a) A person commits an offense if the person:

(1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and

(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

Basically, If you accidentally kill someone as a result of operating a vehicle while intoxicated, you can be charged with Intoxication Manslaughter.  Typically, this felony charge usually comes about as the result of the police believing that you were driving drunk (or on drugs) and then you get into an accident and the driver (or passenger) of the other car (or a passenger in your own car) dies from the accident. 

Just like other intoxication crimes, Intoxication Manslaughter is included in the 86thTexas Legislative Session’s (HB 2048, 86th Texas Legislative Session) additional fines for all offenses that relate to the operating of a motor vehicle while intoxicated:

(1) $3,000 for the first conviction within a 36-month period;

(2) $4,500 for a second or subsequent conviction within a 36-month period; and

(3) $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed

Section 49.02 of the Texas Penal Code defines Public Intoxication as follows:

(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

The Public Intoxication statute specifically includes bars and other places that sell liquor as being public places for purposes of this offense.  Texas law defines a public place as: “any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”

What you may not know is that the arresting office is the one who subjectively makes the decision regarding the “threat of danger an intoxicated person poses toward either themselves or others.”  It’s not fair, but it’s the law.  Fear not, you can still have a trial and if the jury agrees that you were not “intoxicated to the degree that you may endanger yourself or another” then you will be acquitted!

Punishment:

Public Intoxication is a Class C Misdemeanor.

PC 21.07 – Public Lewdness

PC 21.08 – Indecent Exposure

PC 21.08 – Bestiality

PC 21.15 – Invasive Visual Recording

PC 21.16 – Voyeurism

PC 21.16 – Unlawful Disclosure or Promotion of Intimate Visual Material (this is the how they prosecute you for “Revenge Porn”)

PC 21.16 – Sexual Coercion

PC 22.011 – Sexual Assault

PC 22.012 – Indecent Assault

PC 22.021 – Aggravated Sexual Assault  

PC 25.02 – Prohibited Sexual Conduct (this is how they prosecute you for Incest)

PC 38.111 – Improper Contact with Victim 

PC 43.02 – Prostitution

PC 43.262 – Possession or Promotion of Lewd Visual Material Depicting a Child

PC 43.03 – Promotion of Prostitution

PC 43.031 – Online Promotion of Prostitution

PC 43.04 – Aggravated Promotion of Prostitution

PC 43.041 – Aggravated Online Promotion of Prostitution

PC 43.05 – Compelling Prostitution (this is how they prosecute you for being a “pimp” although that term is a bit outdated and human trafficking is now used)

PC 43.22 – Obscene Display or Distribution

PC 43.23 – Obscenity

Public Lewdness is found in Section 21.07 of the Texas Penal Code.

A person commits an offense if the person knowingly engages in any of the following acts in a public place or, if not in a public place, the person is reckless about whether another is present who will be offended or alarmed by the person’s:

(1) act of sexual intercourse;

(2) act of deviate sexual intercourse; or

(3) act of sexual contact

Technically speaking, the first element (sexual intercourse) is pretty self explanatory.  The second element (deviate sexual intercourse) means means any contact of one personals genitals to the mouth or anus of another person, or penetrating the anus with either the genitals or a physical object (Texas Penal Code Section 21.01(1)).  The final element (sexual contact) is defined as “any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person” (Texas Penal Code Section 21.01(2)).

Basically, if you are having sex in public, you can be charged with Public Lewdness.  If you are having sex in a what you thought was a private place (for instance, at the office), but it is a place where there is a substantial risk that someone might see you (and then they are alarmed or offended), then you may also be charged with Public Lewdness.  It is not relevant that you thought no one was around, so long as there is a substantial risk that someone may see you (and then they are alarmed or offended).  Very subjective, I know.

Punishment for Public Lewdness is a Class A Misdemeanor (Texas Penal Code §21.07(b)). The punishment can be a jail sentence up to one year and a $4,000 fine.

The offense is found in Section 21.08(a) of the Texas Penal Code:

A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.

Typically, this is the charge you get if you urinate outside or lets say you expose yourself and start touching… I think you get it.  It’s important to note that the State has to prove you did it with the intent to arouse or gratify the sexual desire of any person (that can be just you) and you had to be reckless about it too. 

Be forewarned, the police like to charge you with Disorderly Conduct  in addition to Public Lewdness because Disorderly Conduct is a subjective and based on the Police Officer’s viewpoint (see section on Disorderly Conduct for more information).

Punishment: 

Indecent exposure is a Class B Misdemeanor (Texas Penal Code Section 21.08(b)) and carries a maximum possible fine of up to $2,000 and jail time of up to 180 days in the county jail.  Good news: It is not a registrable offense unless you have a prior conviction for Indecent Exposure (that’s the bad news)

Disorderly Conduct is found in  Section 42.01 of the Texas Penal Code, and is defined as follows:

(a) A person commits an offense if he intentionally or knowingly:

(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;

(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;

(3) creates, by chemical means, a noxious and unreasonable odor in a public place;

(4) abuses or threatens a person in a public place in an obviously offensive manner;

(5) makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;

(6) fights with another in a public place;

(7) discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code;

(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;

(9) discharges a firearm on or across a public road;

(10) exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act; or

(11) for a lewd or unlawful purpose:

(A) enters on the property of another and looks into a dwelling on the property through any window or other opening in the dwelling;

(B) while on the premises of a hotel or comparable establishment, looks into a guest room not the person’s own through a window or other opening in the room; or

(C) while on the premises of a public place, looks into an area such as a restroom or shower stall or changing or dressing room that is designed to provide privacy to a person using the area.

Unfortunately, this is a very subjective offense because it’s up to the officer to make the call (of course, you can fight it in court, but still, the police officer is the one who determines whether to arrest you based on his/her opinion as to whether you committed an offense or not.

Punishment:

Disorderly Conduct is a Class C Misdemeanor (maximum $500 fine), unless you use a firearm in two situations (Texas Penal Code Section 42.01(a)(7) (“discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local  Government Code”) and Texas Penal Code Section 42.01(a)(8) (“displays a firearm or other deadly weapon in a public place in a manner calculated to alarm”) which makes it a Class B Misdemeanor (maximum six months in county jail plus a $2000 fine)

For you technical types: Texas Penal Code Section 42.01(d) – “An offense under this section is a Class C misdemeanor unless committed under Subsection (a)(7) or (a)(8), in which event it is a Class B misdemeanor.”

Exercise Your Right to Remain Silent.

Many defendants make the mistake of speaking to the police instead of getting an attorney involved from the very beginning. It just makes sense to keep your mouth shut and say nothing because they are looking for any excuse to charge you, and you may be giving them all the details that will be used against you in court. Same goes for agreeing to take any field sobriety tests. My advice is to simply (and politely) tell the officer that you refuse to take any such tests. Then, the results cannot be used against you in your trial.

The Reality of The Criminal Justice System

I utilize the multi-modal approach to the criminal justice system (and recognize its importance). There is systematic disenfranchisement at place within our justice system for marginalized communities in America. I will work with you to understand the ways in which the system could be working against you and how we can best overcome it. I have resources available to help you understand your rights. When possible, I utilize tenants of restorative justice as well as the philosophy espoused in “The New Jim Crow: Mass Incarceration in the Age of Color Blindness” by Michelle Alexander.

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