When are criminal nondisclosures in Texas allowed? Attorney Benson Varghese answers this question in this short video.
Criminal nondisclosures in Texas are allowed under certain circumstances. That is generally when an offense that is a Class B misdemeanor or greater, including felony offenses, have been deferred and ultimately dismissed without a conviction. That is different from a case being dismissed without being placed on deferred. There is also, for felonies, a waiting period of five years that must pass after the case has been dismissed before you are eligible for a nondisclosure.
Should you take a polygraph? Partner Christy Jack discusses a few things to keep in mind before making that decision.
“Any kind of investigative tool that we engage in as a defense attorney is protected by the attorney-client privilege. We would prefer and would advise that if an individual is interested in taking a polygraph that they do so through a polygrapher of our choosing. Should for whatever reason someone not pass a polygraph – sometimes someone’s nervous, and sometimes it’s simply an imprecise wording of a question that causes an individual to fail a polygraph. And if that polygraph or polygrapher is one of our choosing, that failed polygraph is a part of our work product and is not turned over to the police, and ultimately not revealed to the district attorney’s office.”
We hope you found this information helpful. Please visit our Versus Texas blog and video page to find out the answers to other questions like, “Should you take a polygraph?” Partner Christy Jack and other criminal defense attorneys at Varghese Summersett address a number of other important issues including:
Benson Varghese discusses his approach to cases where the person charged has never been arrested or convicted of an offense before.
When a first-time offender contacts us or when their parent contacts us, we walk them through the potential outcomes of a case. And although for a criminal offense, jail or prison time is always a legal possibility, other than Class C offenses, we are trying to do more than keep them out of jail or keep them out of prison. For a first time offender, it is very important for us to secure an outcome that does not leave a conviction on their record. That might be done through a certain type of probation in Texas called deferred adjudication, and it might be done by negotiating a dismissal, either for conditions that are completed up front or by getting them into a diversion program meant for first-time offenders.
There are two types of felony DWI cases in Texas. The first is driving while intoxicated with a child passenger. That is a state jail felony that can be punished by 180 days in a state jail facility all the way up to two years in a state jail facility and a $10,000 fine. The second type of felony offense is if you have had at least two prior offenses for driving while intoxicated. Those offenses do not have to be from the state of Texas, and if they’re from other states, they can be called other names. As long as the underlying offenses are the same as a driving while intoxicated offense in Texas, and you have at least two of those, the state can proceed on a felony DWI case in Texas. For that felony, the punishment range is going to be at the minimum of two years in prison all the way up to 10 years in prison with a $10,000 fine.
The state can enhance that offense with prior felony convictions, making the punishment range even higher. If you are charged with a felony repetition DWI in Texas, it’s important to contact an experienced DWI attorney to see if there are alternatives to prison. In some counties, there are diversion programs that are meant to address alcoholism and gives the person an opportunity to stay out of prison.
If someone is contacted by the United States government after they, or a loved one, has been convicted of a crime, and becomes informed that the government wants to start to take either wages or items of property from that person, pursuant to a restitution order, a lawyer can make a great deal of difference. In those circumstances, it is important to have somebody who knows how to speak the language of prosecutors, to try renegotiate a payment plan that’s affordable.
When I receive clients in this circumstance, and I receive a lot of them, they’re often in a panic, just like anybody else who has a collector after them, is in a panic. They’re even more anxious because they’ve been convicted of a crime and they know that they really don’t have the same capacity to fight the underlying basis, like someone who’s not been convicted. They’re feeling like, “Oh my gosh, I’ve already been convicted, I don’t have any bullets, they’re going to take my house, what do I do?”
There are certain limits under law as to how much restitution the government can collect. There’s also a certain amount of energy they have to go through to collect it. A savvy attorney will try to take those items of leverage, and use a negotiation posture to come up with a repayment plan that can make sense. Often times, those repayment plans are at a rate that will never repay the underlying obligation.
For example, if somebody has a million dollar judgement because of their Medicaid fraud case. If their wages or their circumstances can make a justifiable argument that only $400 or $500 dollars a month in repayment is what they can afford, well then you can often times convince a prosecutor to live with that, provided they’re assured that’s an accurate explanation or description of the assets of the client. Basically you could come up with a plan that’s never going to repay the million dollars, and give assurance and security to the client.
If you are falsely accused of rape, the number one thing to do is to stop talking. This means all forms of communication with the accuser. We’re talking about texting, emailing, phone calls, or communication through social media. Not only do you not want to communicate with your accuser, you don’t want to communicate with anyone at all.
You might ask, “Well, can’t I talk to my friends and my family about the allegations?” That is also a problem because they can later be subpoenaed and be forced to testify about what you told them.
Many people think if you are innocent, there’s really no reason not to talk, or not to answer questions, but that is incorrect. Here’s just an example: If you’re asked about a very specific date or time, many of us can be mistaken about very specific times. If you make that mistake, then that statement can later be used against you to try and prove that you are not being honest. That’s just a small example of how talking can get you in trouble in these circumstances.
When it involves law enforcement, or other investigative agencies, it’s even more important not to talk. You might be told by an investigator that if you don’t cooperate, they’ll just get a warrant for your arrest. Or you might be told that they just want to get your side of the story to try to clear things up. The problem is, you’re likely to get arrested even if you do cooperate. The bottom line is that if the investigator even slightly believes your accuser more than they believe you, they’re going to get a warrant for your arrest.
Ideally, what you should do is to stop talking and get legal representation as soon as you can.
Benson Varghese discusses removing offenses and arrests from a person’s criminal history through an expunction in Texas in this short video.
In Texas, a person can get an expunction of their criminal record under some circumstances. For most cases, that means either a case was not filed or the case was ultimately dismissed without a conviction and without any sort of probation. That’s going to be true for a Class B or a Class A misdemeanor, as well as any felony offense.
For a Class C misdemeanor, you can actually get an expunction if your case has been deferred and then dismissed or dismissed outright. It’s important to remember that there is a time period that must pass before you’re eligible for an expunction. That’s generally going to be the statute of limitations for that offense. For a misdemeanor, you’re generally going to wait two years unless the misdemeanor was a Class C in which case you can wait six months. For a felony, the statute of limitations is going to vary by the offense. Three, five, and seven-year statute of limitations are common, but it’s important to consult with an attorney to determine if you are eligible for an expunction.
Should you use an expert in a DWI trial? Lawyer Benson Varghese discusses some considerations when making this determination.
In a DWI case, a lot of evidence is going to be presented to the jury that is very specialized. The standardized field sobriety tests are the first example of something that’s very standardized and very specialized. Another example is going to be either the breath test or the blood test, depending on what type of evidence is produced in front of the jury.
Other types of specialized evidence might be issues that go to causation of any accident, whether that’s the condition of the vehicle, how vehicles approached the intersection, things that might go to show who is responsible for the accident. Those are all specialized areas, so when you’re considering experts you’re talking about people who have a specialized knowledge in those areas. What’s important to remember in a criminal case is that the burden of proof is on the State. One of the things that you might be risking when you put an expert on is then it becomes a battle of the experts instead of always reminding the jury that the burden remains with the State. While experts may be available, you have to think carefully about why you want to put them on and if you can get those same arguments out by cross examining the State’s experts.