Frequently Asked Criminal Defense Questions and Answers

Gary Churak's Answer

The Blood test will probably read that you have THC in your system. Marijuana, which the basic formula for the drug is THC, stays in your system about 30 days. So, the chances are that it would show up in your system. Now, the question is if you smoke three days ago, why were they pulling you over for DWI at that time? There may be an issue as to probable cause for the arrest down the road the fact that you had such a small amount in your system at the time that you were driving.

Gary Churak's Answer

This is not necessarily true because, although public defenders make a minimal amount of money, each attorney has their own idea regarding how they should represent their client. The ethics of the bar would require that attorney to zealously represent the client, and if the client wanted the trial, the court-appointed attorney is required to represent him throughout the trial. It is a misconception that court-appointed attorneys do not represent their clients or do not provide adequate time to represent their clients.

Gary Churak's Answer

I have not heard about this test being done in a long time, because it is quite impossible for most people to do; therefore, they tend to not use those types of field sobriety tests. The three main field sobriety tests are the HGN, or Horizontal Gaze Nystagmus test, in which they basically watch the person’s eyeballs jerk about with a stimulus. In another test, the officer will move a pen back and forth at 90 degrees; another, the One Leg Stand, involves the officer asking the person to hold their leg up for 30 seconds, and then there’s the 10-step Walk and Turn. Those are the most-recognized field sobriety tests.

Gary Churak's Answer

A person can refuse to take a breath test, although they should remember there is a cost to that. If they take the breath test and fail, their license can be suspended for 90 days, but the suspension could be 180 days if they refuse the breath test. Some parts of Texas have a mandatory blood draw, which means that, even if someone refuses to take a breath test, the police can get a warrant to allow them to extract blood from the person and tested, anyway. Therefore, whether they should or should not depends on where the person was at the time of the arrest.

Gary Churak's Answer

Two beers may be enough to get someone intoxicated, depending on what is be different in terms of their metabolism and how they process alcohol.

Gary Churak's Answer

The grounds for the 11.07 shall be raised on the 14th Amendment, due process, also, wrongful/illegal conviction. In researching my case, I have discovered that the State did not follow the process of certifying a juvenile according to the laws established but the State of Texas. Tx Code Annotated, Family #2, section 11.01 to 58.00, emphasis on 53.07-Service of Summons. Therefore, if the State proceeds in charging and convicting said juvenile, such a conviction is illegal since said juvenile is, as a matter of law and fact, still within juvenile jurisdiction. My wife and family have purchased and sought out my juvenile case file and upon inspection by myself and certain lawyers. Needless to say, the file falls short of meeting the guidelines laid out by the state…. If in fact the State failed to properly certify you as an adult you would have the basis of a 11:07 Writ of Habeas Corpus for wrongful conviction. I handled a case identical to your issue on an Appellate level where the trial court failed to give the properly notification on the certification hearing. The Appellate Court agreed with our position and vacated the certification and conviction. It was a sex offense. You may also have an ineffective assistance of counsel issue in your writ based upon your trial lawyer failing to pick up on the defect in notification and filing for an appeal. Matters are complicated when the juvenile court loses jurisdiction in the matter. Talk to an attorney who handles 11:07 writs. Most law firms like mine will give you a free initial consultation.

Gary Churak's Answer

Anytime you’re arrested, your job can find out about it. It just depends on the situation. Usually, it takes some time for criminal background checks to pick up any information on arrest. It could be as little as a week, it could be months. I had a recent situation where a client of mine lost his job because his arrest was posted on some website and his boss saw it. So, you never know. There is no guarantee that your boss isn’t going to find out that you’ve been arrested.

Gary Churak's Answer

The grounds for the 11.07 shall be raised on the 14th Amendment, due process, also, wrongful/illegal conviction. In researching my case, I have discovered that the State did not follow the process of certifying a juvenile according to the laws established but the State of Texas. Tx Code Annotated, Family #2, section 11.01 to 58.00, emphasis on 53.07-Service of Summons. Therefore, if the State proceeds in charging and convicting said juvenile, such a conviction is illegal since said juvenile is, as a matter of law and fact, still within juvenile jurisdiction. My wife and family have purchased and sought out my juvenile case file and upon inspection by myself and certain lawyers. Needless to say, the file falls short of meeting the guidelines laid out by the state…. If in fact the State failed to properly certify you as an adult you would have the basis of a 11:07 Writ of Habeas Corpus for wrongful conviction. I handled a case identical to your issue on an Appellate level where the trial court failed to give the properly notification on the certification hearing. The Appellate Court agreed with our position and vacated the certification and conviction. It was a sex offense. You may also have ineffective assistance of counsel issue in your writ based upon your trial lawyer failing to pick up on the defect in notification and filing for an appeal. Matters are complicated when the juvenile court loses jurisdiction in the matter. Talk to an attorney who handles 11:07 writs. Most law firms like mine will give you a free initial consultation.

Gary Churak's Answer

It’s the same. Basically, it’s driving under the influence of either alcohol or drugs. So, it doesn’t delineate between whether you were driving drunk because of booze or driving drunk because you are in the influence of narcotics.

Gary Churak's Answer

Well, it’s going to be the same as if you were arrested for an alcohol DWI. If you submit to a breath or blood test and fail, your license will be suspended for 90 days administratively. If you refuse, your license will be suspended for up to 180 days administratively. If you are convicted for DWI, either alcohol or drugs, you’re looking at a potential license suspension. However, if it’s your first offense, you are able to take a class through DPS to keep your license so it will not be suspended if you’re put on probation. If you’re convicted and sent to jail, you will lose your license for up to two years.

Gary Churak's Answer

Whenever someone decides to represent themselves pro se, it creates an extra burden on the court in terms of admonishments and documents that need to be executed. For the purpose of a good record on a case, most courts require an attorney to handle the matter.

Gary Churak's Answer

Yes, you are entitled to an expunction. Contact an attorney experienced in handling expunctions. Most like myself will offer you a free initial consultation.

Gary Churak's Answer

It means you successfully completed the pre-trial diversion program and your case was dismissed. You are now entitled to file for an expunction to remove the case from your criminal record. Most San Antonio expunction lawyers like myself will offer you a free initial consultation

Gary Churak's Answer

That is conceivable. If they find any illegal narcotics or marijuana in your vehicle while you’re being arrested for DWI, the chances are that you will be charged with both; possession of the drugs and DWI. It is not unusual and I’ve had numerous cases through the years where individuals have been charged with felonies for drug possession and a misdemeanor DWI.

Gary Churak's Answer

Stop right there. There are ways to avoid a trip to jail and clear a Bexar County warrant. Contact an experienced criminal defense lawyer in San Antonio for advice and representation. Most like myself will offer you a free initial consultation

Gary Churak's Answer

It is possible that you will be drug tested at your initial probation meeting. This is especially true if you are on probation for a drug offense. If you are asked to submit to a UA and are hot, it is advisable to let the probation officer know. Probation will use the test as a benchmark to see if you continue to use drugs. Also if you are hot you can expect to be tested on a regular basis.

Gary Churak's Answer

The worst thing anyone can do is to defend themselves in a criminal case without an attorney, because a lay person has neither the experience nor the knowledge about the law to do that successfully.

Gary Churak's Answer

Based on the facts you present do not plead guilty. Under Texas Law a parent has the absolute right to discipline their child including the use of reasonable force such as spanking. If there are no physical injuries and no bruises or marks on the child you have not committed a crime. Often CPS and the DA fail to realize that you are a parent and as such have the right to raise your children under your beliefs and principals within the boundaries of the law.

Gary Churak's Answer

These are actually two different things, because for a verdict of “not guilty”, the jury would have to hear the evidence and find that there was not sufficient evidence to convict the person. Getting a case dismissed happens when the DA chooses to not prosecute the person any longer, for any of a number of reasons, such as not being able to contact the officer, such as if the officer was unavailable or no longer with the force; or there may be an issue with the breath test or blood test coming back flawed. There are a number of reasons why a prosecutor might dismiss a DWI case.

Gary Churak's Answer

Someone who was charged with a DWI faces a 6-month jail sentence, even for the lowest level of DWI, in addition to the thousands of dollars that a DWI conviction could cost them. It’s the person’s choice whether or not to hire an attorney, but my recommendation would be to hire an attorney.

Gary Churak's Answer

Not necessarily. Miranda is basically a mechanism whereby an individual in a custodial arrest situation cannot be questioned by police unless that individual had been advised of their constitutional rights, and any statement they make can be held as inadmissible. Miranda will only apply if someone was sitting in handcuffs being questioned by the police and the person confessed to their crime without the police having advised them of their Miranda Rights.

Gary Churak's Answer

This is a broad subject and there are many exceptions to the need for a search warrant under the law, although each case would have to be individually analyzed by the attorney to determine whether or not the search was valid.

Gary Churak's Answer

It would probably read a low percentage of THC in your blood depending on how much you smoked. Usually, it will — Marijuana could stay in your system up to 30 days, it just depends on how much it’s showing in your system at the time that they’re running the blood test. There is a scale they use arbitrary as it is to make a determination of the level of intoxication.

Gary Churak's Answer

Criminal cases that receive deferred adjudication probation will remain in your background until such time as you obtain an order of non-disclosure. Most experienced criminal defense attorneys who handle non-disclosures, like myself will offer you a free consultation

Gary Churak's Answer

It would depend on what the attorney does at an administrative hearing. The only way that you can win in an administrative hearing in Texas is to subpoena the officer and if the officer does not show on a number of occasions, the administrative judge will dismiss the case. They do not even need the live testimony of an officer; all they will need to do is establish through documents certified copies of the police report and the DCI25 that basically the officer had a probable cause for the arrest that he offered the defendant to take a blood or alcohol test, that the defendant took the test and failed or refused the test. That’s all they have to prove for an ALR license suspension. So, it’s pretty much a stack Kangaroo Court losing your license if you get pulled over for DWI. It’s my recommendation that it’s always a better pop for your dollar to have your attorney go ahead and get you an occupational license versus trying to fight an ALR suspension.

Gary Churak's Answer

You need to make 2 calls The first to a local Bonds men to get him out of jail. The second to an experience criminal defense attorney who handles cases Kerr county. Most like myself will offer a free consultation

Gary Churak's Answer

You are not going to be able to do anything until you hire a lawyer. Right now you have a warrant for your arrest without bond. You will need an attorney to go talk to the judge about setting a bond Some judges required that you be actual custody before they said the bond. Contact an experienced criminal defense attorney today. Most like myself will offer you a free consultation

Gary Churak's Answer

Based on the facts you present do not plead guilty. Under Texas Law a parent has the absolute right to discipline their child including the use of reasonable force such as spanking. If there are no physical injuries and no bruises or marks on the child you have not committed a crime. Often CPS and the DA fail to realize that you are a parent and as such have the right to raise your children under your beliefs and principals within the boundaries of the law.

Gary Churak's Answer

In order to operate an Intoxilizer 5000 in Texas the operator must be certified by the Texas Department of Public Safety. In addition the machine must be properly calibrated and inspected on a regular basis. A Failure to comply with these requirements can lead to the inadmissibility of the BAC evidence through a Motion to Suppress. Information regarding the arresting agency’s Intoxilizer 5000 status can be obtained by the defense counsel from DPS through the filing of Discovery Motions.

Gary Churak's Answer

Well, usually, drug related cases require a blood test and it takes some time to get the blood results back from the lab, so that could add an additional two to three months for the case. Otherwise, there is probably no difference between handling a DWI with alcohol and handling a DWI with drugs.

Gary Churak's Answer

You probably received deferred adjudication on an obstruction Hwy on your first DWI. With that, I mind the new case will be filed as a DWI 1st but will be treated by the DA as a DWI 2nd in terms of a plea bargain offer. In all likelihood, you will be back in CC#6 with Judge Christian. I have known Judge Christian for over 30 years and he was my former law partner and he will be tough on this new case. It may be possible to get the case dismissed or be found not guilty depending on the facts of your case. I would recommend that you retain an experienced DWI lawyer. Most like myself will offer you a free consultation

Gary Churak's Answer

You could probably beat the possession case. However, it does not matter whether you were driving under the influence of illegal narcotics or prescription narcotics. In fact, you will note that often prescription bottles contain the warning “can cause drowsiness. Do not drive, do not operate machinery”. So, and it is conceivable that even though you have a prescription for the drug, you could be charged with DWI. And in fact, I’ve had numerous cases where my clients have been charged with DWI because they’ve taken a Zoloft or Xanax and were determined to be under the influence of that narcotic drug while driving.

Gary Churak's Answer

Well, it depends on whose Marijuana it is. Usually, it’s based upon possession. Possession can be held by two individuals at the same time. Often, in these situations, a cop will take everyone in who’s in the car if some person doesn’t confess to the possession of the Marijuana. So, if that situation happens to somebody, a client of mine, it’s my recommendation that he pursue it as hard as he can to try to establish it wasn’t his marijuana. If the other guy takes the wrap, often, we’re able to get the case dismissed because somebody has taken the wrap for the Marijuana.

Gary Churak's Answer

Well, there could be a possibility of receiving a lesser included offense like obstruction of highway by alcohol or drugs could be offered as a plea bargain. Some counties have pre-trial diversion programs for younger defendants. It all depends on where your case is being prosecuted. Like I said, Bell County, for one, will not give a pre-trial diversion for a DWI and it’s very rare that you can get obstruction of the highway for any kind of drug-related DWI. However, in Wilson County, in just South of San Antonio, they’ll offer a pre-trial diversion for a DWI.

Gary Churak's Answer

In order to be charged with driving while intoxicated; the drugs have to be in your system. If they’re in your vehicle and you get pulled over, you could be charged with possession but then, you know, it’s a defense that the drugs do not belong to you and they may belong to a friend who had a prescription form. So, at this point, you know, if you’re looking at a possession charge, it’s a good idea to go hire yourself a drug lawyer and start getting the evidence together that shows that it was not your drugs but someone else’s who had a valid prescription form.

Gary Churak's Answer

Whether or not someone failed the test is strictly subjective on the officer’s part. The officer will ask the person to take a breath test and they will fail the field sobriety test if the officer believes the person was intoxicated. The field sobriety tests will basically have no impact on whether or not someone is charged with a DWI; that will depend on whether the officer already made that determination when he stopped and observed the person.

Gary Churak's Answer

No, it’s not going to matter because the law is pretty established that once an officer pulls you over for any kind of infraction of a law, which could be speeding or running at red light or even crossing lanes without signaling, he has the ability to search your vehicle if he has any kind of reasonable cause to do so. So, it is not a defense that he didn’t have a warrant and he went and searched your vehicle and found the Marijuana. Often, I have that situation come across where the officer says he smelled Marijuana in the vehicle but that is the usual excuse officers use for searching vehicles.

Gary Churak's Answer

Well, the probable cause is very, very loose. Basically, the officer, all he needs to do is observe an irregularity while you’re driving. In San Antonio, that means anybody on the road after 12 o’clock is basically a DWI suspect. And if the officer finds any kind of driving infraction, even the smallest one like crossing a centerline without — crossing a line without signaling, he will pull you over and if he believes that you are — have been drinking, he will ask you if you’ve been drinking, if you say yes or no, he will come and provide the field sobriety test, the HGN, the walk and turn and the one-leg stand to determine if you were under the influence of alcohol. If he determines you are under the influence of alcohol or drugs, he will basically take you downtown. If it’s alcohol, he will offer you a breath test. If you refuse, in Bell County, he will get a warrant for your blood. If he believes you’re under the influence of any kind of drug, he will go directly to the blood draw and get a warrant for that.

Gary Churak's Answer

Under Texas Law a deferred disposition of a Class C misdemeanor, your six months stay out of trouble probation, qualifies you for an Expunction. An Expunction is a civil lawsuit filed with the District Clerk in the County where the offense occurred seeking a sealing of the criminal case. All law enforcement agencies and courts who have information regarding your case are served with notice of the Petition. It may take up tom six months to get your Order of Expunction depending on the County. Once the Order is signed by the Judge all the law enforcement agencies and courts that have information on your case are Ordered to remove that information from there records. This could take up to a year or more. Lawyers charged differently for their services. Contact some attorneys in your local area and discuss what they can do for you and what it will cost. Go with the attorney that you feel most comfortable with. Check the internet for local attorneys. Good Luck.

Gary Churak's Answer

This would depend on where the person was at the time. Some cities have a law requiring a mandatory blood draw, so it would not matter whether or not someone blew because, if they refuse to blow, the police can just get a warrant, strap the person down, stick the person with a needle and remove blood from the person without their consent. The person should not blow if there is no mandatory blood draw in the city, municipality or county where they were arrested, although if there is a mandatory blood draw, the person should consider blowing.

Gary Churak's Answer

If he has complied with all his probation requirements the court may let him report by mail. This would be the only alternative and it is up to the judge. An attorney would be needed to go talk to the judge. Most experienced criminal defense lawyers like myself will offer you a free consultation

Gary Churak's Answer

The amount of Marijuana does not matter, whether for the purposes of a DUI or for criminal prosecution, if it’s a small amount, 0 to 2 ounces it’s a class B misdemeanor, 2 to 4 ounces it’s a class A misdemeanor, over 4 ounces it’s a felony. So, you could realistically be charged with a possession of marijuana and a DWI at the same time. What they look for is has the marijuana impeded your ability to drive, and that’s what the officer is going to look for in field sobriety test and if a blood test is taken to see what the THC level is in your blood at the time that you were driving.