How to Avoid a Bond Forfeiture

If you have bonded out of jail, either through a personal bond or a surety bond, that bond can be revoked and an order for your arrest can be mandated if you have forfeited your bond.  I often get hired to help a client after they have already acquired a bond forfeiture.  They tell me about their case, and more times then not the initial charge is a minor infraction that could have been handled easily in court, if only they would have gone to court.  After I explain to my clients the process of bond forfeitures and how to go about setting them aside, and all the fees associated with it, my clients then realize that what was once an easy case is now a bit more complex. So before it gets to that point, I will do my best to explain 1) How to avoid a bond forfeiture and 2) the consequences of having a forfeiture.

Show up to all court dates

A condition of your bond is that you be present to each one of your court dates. It is your responsibility to attend court and not be late, even if your attorney is going to court for you as well.  That is why it is very important that you be aware of all of your pending court dates and times.  If you fail to show up for your court date in a misdemeanor case the judge can forfeit your bond, increases the amount of the bond and issues a warrant for the your arrest.

However, if you fail to show up for your Felony case the consequences are more severe. The District Attorney could file a felony Bail Jumping charge. This is unlikely where only one court date is missed and  through counsel you quickly gets your case back on the docket in good standing. Under Texas Penal Code, Section 38.10, Bail jumping is a third-degree felony punishable by two to ten years in prison, and/or a $10,000 fine.

Complete all conditions

Sometimes a condition of a personal bond will be to do counseling classes, or to have ignition interlock installed in your vehicle.  Of course, a given condition is to not commit any new offenses while out on bond, so a new offenses can also result in your bond being forfeited. If there is a condition of your bond, and you do not complete that condition in the time allowed, a judge may revoke your bond, issue a forfeiture, and order a warrant for your arrest.

Bond Forfeiture Civil Suits

Once your bond is forfeited you not only face a warrant and (usually) at least some time in jail, you also face a civil suit to recover the amount of the bond forfeited. As a general rule, the Travis County Attorney’s Office will file a civil suit against 45 days after the bond forfeiture is entered.A civil suit can be avoided if the bond forfeiture is set aside within 30 days of its issuance. However, if the forfeiture is not set aside, the County Attorney’s Office will file the civil suit and start the clock ticking for settlement of the suit. Typically, the fees for settling a civil bond forfeiture lawsuit are the costs of filing the suit, the State’s attorney fees, and, in most cases, 5 percent per month of the amount of the bond. These fees are in addition to the cost of hiring your own attorney to handle the settlement.

If you already know that your bond has been forfeited, you should hire an attorney as soon as possible to set the forfeiture aside, stop or settle the civil suit, and get your case back on the docket.

By: Law Office of Florencia Rueda, PLLC

905 West Oltorf, Suite D,

Austin, Texas, 78704

(512) 415-7648

More Rights for You (and your car).

The United States Supreme Court recently issued a ruling that modifies the search incident to arrest doctrine, rejecting a broad reading allowing officers to always search a citizens vehicle incident to arrest. In the new rulying, Arizona v. Gant, — U.S. —, 2009 WL 1045962, the Court overturned the search incident to arrest of Rodney Gant’s car after Gant was arrested for driving with a suspended license, handcuffed and secured in the back of a patrol car. With several officers at the scene, officers found cocaine in Gant’s car during the search incident to the driver license arrest.

The Court held that a search of the passenger compartment of a vehicle following an arrest is allowed “only if [1] the arrestee is within reaching distance of the passenger compartment at the time of the search or [2] it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”

You may read the case here: GANT CASE

Possession of Marijuana – it’s not a traffic a ticket.

Recently, I saw on the news people in Austin being interviewed about the “new cite and release law” regarding possession of marijuana in Austin, Texas.  The “new law” is really not so new, what is new is the fact that the Austin Police Department will be adapting the law that was passed in 2007.

The law has been in effect since September of 2007. The law simply offers police a choice to issue a citation to offenders for a handful of low-level class A and B misdemeanor crimes – including certain criminal mischief and graffiti charges, driving under a suspended license, and possession of up to 4 ounces of marijuana. After seeing the news broadcast, and the reactions, I have decided I would clear up a few misconceptions regarding the “new law.”

The law does not eliminate jail time as a punishment possibility for any misdemeanors, including possession of marijuana.  Possession of Marijuana is still punishable by jail time.  Less than 2oz (Class B misdemeanor) can receive punishment of up to 180 days while 4oz > 2oz (Class A misdemeanor) can receive up to 1 year in jail as punishment.

The law (and the implementation of it) does not change the offense or category level for possession of marijuana or any other misdemeanors.  The only change is that instead of spending a night in jail before being released on a personal bond, you are given a written citation telling you to appear in court.

So to those that were happy because they thought that POM (Possession of Marijuana) was now only a class c traffic offense, I’m sorry.  And to those that are upset, because they think that POM is now decriminalized, well it’s not.

By: Law Office of Florencia Rueda, PLLC
905 West Oltorf, Suite D
Austin, Texas, 78704
(512) 415-7648

Stop vs. Encounter

Many of my clients ask me “What right does a cop have to stop me on the street?” and more importantly “What rights do I have when a cop approaches me?”

The answer depends on what kind of interaction the Police officer is having with you.  There are 3 kinds of possible interactions that a Police Officer can have with a citizen: 1) An Encounter, 2) A Detention, 3) An Arrest.

An Encounter

If there is no reason for an officer to believe that a crime has occurred and he approaches a citizen in public, this is considered An Encounter.  The courts have also defined an encounter as “whether a reasonable person would feel that they were free to leave the situation as governed by an objective standard.”  If the cop car lights are on, you are in handcuffs, or the cop tells you that you cannot leave, then chances are it is not an encounter because a reasonable person would not believe they are free to leave.

During an encounter with a police officer, you are free to walk away, free to ignore his questions and not respond to the officer at all.  The reason for this is because the officer has no right to detain you if he has no reason to believe that a crime is afoot or that the public welfare is in danger.

You have the right to terminate an encounter with a police officer unless you are being detained in police custody, or have been arrested. Say to the officer, “I have to be on my way. Am I free to go?” If he says “Yes,” leave.  If he says “No,” it is not an encounter, and he needs either reasonable suspicion to detain you or probable cause to arrest you.

A Detention

Now, If a police officer has “reasonable suspicion” that criminal activity is afoot he may then detain you and investigate you long enough to confirm or dismiss his suspicion.   Under the law, a police officer has “reasonable suspicion” if he or she is able to articulate facts of criminal activity. This can be running a red light, committing small traffic violations, etc.  Reasonable suspicion is a low burden for a police officer to meet.

If you are being detained, then you do not have the right to walk away from the officer.  You are required to ID yourself if the police officer request you do so.  However, that does not mean you have to give the officer consent to search your car or person. But, if the officer believes his safety is at risk, he may briefly pat you down to make sure you do not have weapons.  Besides identifying yourself, you are not under any obligation to answer the officers question without an attorney.  You are not obligated to give the officer consent to search your car, person, or belongings.  This includes when you are stopped for a DWI, you are not required to do the field sobriety test and you may refuse.

An Arrest

If an officer has probably cause to believe that you have committed or are committing a criminal offense, then that officer has the right to arrest you.
Probable cause means that given all the circumstances, a crime probably occurred. Although Probable cause is a higher burden that reasonable suspicion, it is still a relatively low burden for the officers to meet.  Once you are arrested, the officer cannot interrogate you unless he has read to you your Miranda rights, which include your right to remain silent and your right to an attorney.  If you have been arrested and are being interrogated, you have the right to immediately ask for an attorney and refuse to answer any questions until you have your attorney present.

Use your rights

It is important to know your rights when dealing with a law enforcement officer.  Protecting and making use of your rights during either an encounter, detention, or arrest can help you tremendously in the long run.  You have the right to ask for an attorney, not consent to searches,and refuse to answer investigatory question until you had the opportunity to have your attorney advise you.

As always, please feel free to call The Law Office of Florencia Rueda, PLLC at (512)-415-7648 if you or a loved one has been arrested in Austin or simply have questions about your rights.

Failure to ID

I have often found that because of fear, my clients end up getting arrested in situations they would normally end up in simple citations. Most frequently, their fear clogs their judgment and they end up giving law enforcement a fake name. The most common scenarios and reasons in which this happen are:

1. Afraid because underage and don’t want parents to find out.

2. Afraid even though there is no reason to be.

3. Afraid for immigration reasons.

4. Afraid for outstanding warrants.

The logic my clients tell me is that if the cop takes them at their word, then they wont be in trouble a) under their real name, b) for outstanding warrants, c) for immigration, d) parents wont find out.

The logic above fails. Where you might have just been let go with a speeding warning, or class c ticket of some sort, or nothing at all, you are now arrested with a misdemeanor that carries with it jail time. Below is the Texas Code that outlines and defines what constitutes Failure to ID and the punishment ranges for the offense.

§ 38.02. FAILURE TO IDENTIFY.

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information. (b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has: (1) lawfully arrested the person; (2) lawfully detained the person; or (3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense. (c) Except as provided by Subsections (d) and (e), an offense under this section is: (1) a Class C misdemeanor if the offense is committed under Subsection (a); or (2) a Class B misdemeanor if the offense is committed under Subsection (b). (d) If it is shown on the trial of an offense under this section that the defendant was a fugitive from justice at the time of the offense, the offense is: (1) a Class B misdemeanor if the offense is committed under Subsection (a); or (2) a Class A misdemeanor if the offense is committed under Subsection (b). (e) If conduct that constitutes an offense under this section also constitutes an offense under Section 106.07, Alcoholic Beverage Code, the actor may be prosecuted only under Section 106.07.

Expunctions & Keeping Your Record Clean

Many people have the misconception that if their case is dismissed, the records no longer exist. Unfortunately, getting the case dismissed does not mean that the records disappear.  The fact that you were arrested will still show up on criminal background checks unless you take the necessary steps to ensure they are obliterated. That necessary step is to file a petition for Expunction.

An expunction is the process of having records of arrest permanently hidden from public view. Failure to obliterate an expunged record is a class B misdemeanor. Yes, the law actually requires that expunged records be “obliterated.” If your record is expunged you can deny ever being arrested (unless you are under oath in a criminal case, in which case you may answer that the case was expunged).

So, who qualifies for an expunction?

Chapter 55 of the Texas Code of Criminal Procedure contains the requirements and procedures to properly expunge records in Texas.  To sum up the code below,  you may qualify if your case was dismissed, you were found Not Guilty by a judge or jury, or you were convicted but later pardoned.

Call The Law Office of Florencia Rueda, PLLC, at 512-415-7648 today to find out if you qualify for an expunction.

Art. 55.01. RIGHT TO EXPUNCTION.  (a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or

(B) convicted and subsequently pardoned; or

(2) each of the following conditions exist:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:

(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or

(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;

(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and

(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.