Building a Defense In Texas

Being accused of a crime can change your life forever. If you are under criminal investigation or charged with a serious offense, you need an experienced lawyer who will fight for your rights. The attorneys at the Law Office of David A. Breston are here to make sure you get the best possible representation. We are recognized throughout Texas for excellence in all aspects of criminal defense. We have a long history of success in complex state criminal law. State crimes often include minor drug possession, shoplifting, and DUI/DWI.

Although federal criminal investigations and prosecutions make big headlines, most criminal cases fall under state law and are tried in the courts of the state where the offense is committed. While there is considerable commonality from state to state, significant differences exist:

  • Categories of crimes
  • Sentencing guidelines
  • Mandatory minimum sentences
  • Court rules and procedures
  • Death penalty availability

Defining a State Offense

The basic difference between federal and state criminal offenses is that a federal offense violates a federal law and a state offense violates a state law. In some cases, however, federal and state laws cover the same area of criminal law. Federal and state laws can coexist because they are in agreement, but if a state law contradicts a federal law, the federal law generally trumps the state law in the interest of the national welfare. In other areas of criminal law, the federal government has exclusive power to regulate, enforce, and prosecute alleged crimes. These matters often involve interstate commerce, national security, and federal programs. This is why most alleged white collar crimes, such as credit card fraud, tax evasion, and welfare fraud, are prosecuted in federal courts.

State criminal laws generally cover any area of criminal law not exclusively reserved by the federal government. This means that most crimes against a person or property are state crimes, including homicide, sex crimes, robbery, burglary, and domestic violence. But if a crime crosses state lines, it may still fall under federal jurisdiction. For instance, most drug offenses are handled in state courts, but drug trafficking is a federal crime; likewise, many sex crimes become federal crimes if the alleged victim is taken to another state.

In some cases, a crime walks the line between a federal and state offense. For example, graffiti is a state or local offense. However, if a person allegedly tags a federal building or vehicle, such as a courthouse, post office, or mail truck, the offense could be charged as a federal crime. Attorneys will do everything they can to keep close cases in state courts, thus avoiding the possibility of a federal prison sentence.

Misdemeanors in Texas

Misdemeanors are often handled within the state and are not a federal crime. A crime is considered a misdemeanor if the maximum possible sentence is a year in the county jail or less. Misdemeanor crimes are less serious than felonies, but misdemeanor offenses can still be serious matters. Still, all misdemeanor charges can show up on a background check. And, when someone is confronted by misdemeanor crimes, the end results are quite often negative. Our experienced misdemeanor defense attorneys will help you get through any situation, however, advising you about your rights and which misdemeanors can or cannot be elevated to a felony, so you know where you stand, according to misdemeanor laws. In some cases, you can have your misdemeanor expunged from your record.

Criminal Law FAQs

How drunk or high does someone have to be before he can be convicted of driving under the influence?

In most states, it’s illegal to drive a car while “impaired” by the effects of alcohol or drugs (including prescription drugs). This means that there must be enough alcohol or drugs in the driver’s body to prevent him from thinking clearly or driving safely. Many people reach this level well before they’d be considered “drunk” or “stoned.” If you were arrested for driving under the influence of alcohol in Houston, call the Law Offices of David A. Breston today for a free consultation (713) 224-4040.

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How can the police find out whether a driver is under the influence?

Police typically use three methods of determining whether a driver has had too much to be driving:

  • Observation. A police officer will pull you over if he notices that you are driving erratically — swerving, speeding, failing to stop or even driving too slowly. Of course, you may have a good explanation for your driving (tiredness, for example), but an officer is unlikely to buy your story if he smells alcohol on your breath or notices slurred words or unsteady movements.
  • Sobriety tests. If an officer suspects that you are under the influence, he will probably ask you to get out of the car and perform a series of balance and speech tests, such as standing on one leg, walking a straight line heel-to-toe or reciting a line of letters or numbers. The officer will look closely at your eyes, checking for pupil enlargement or constriction, which can be evidence of intoxication. If you fail these tests, the officer may arrest you or ask you to take a chemical test.
  • Blood-alcohol level. The amount of alcohol in your body is understood by measuring the amount of alcohol in your blood. This measurement can be taken directly, by drawing a sample of your blood, or it can be calculated by applying a mathematical formula to the amount of alcohol in your breath or urine. Some states give you a choice of whether to take a breath, blood or urine test — others do not. If you test at or above the level of intoxication for your state (.08 to .10 % blood-alcohol concentration, depending on the state), you are presumed to be driving under the influence unless you can convince a judge or jury that your judgment was not impaired and you were not driving dangerously. Defense attorneys often question the validity of the conversion formula when driver’s alcohol levels are based on breath or urine tests.

Do I have to take a blood, breath or urine test if asked to do so by the police?

No, but it may be in your best interests to take the test. Many states will automatically suspend your license for a year if you refuse to take a chemical test. And if your drunk driving case goes to trial, the prosecutor can tell the jury that you wouldn’t take the test, which may lead the jury members to conclude that you refused because you were, in fact, drunk or stoned.