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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 92531
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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I am facing a court case tomorrow morning concerning a Public

Customer Question

I am facing a court case tomorrow morning concerning a Public intoxication charge. I didn`t get a Lawyer to represent me intentionally because, every lawyer i spoke to didn`t sound like they wanted to represent me the way i felt i should be represented.

The story goes:

My wife and i got into an arguement one night after having a little bit to drink. I had not drank that much but my wife had been drinking quite a bit. After the back and forth in arguements she asked me to take her to the store inorder for her to buy more alcohol. Seeing how the environment was already, i was not eager to drive and get her somemore alcohol. It would have only made the situation worse. I told her since i had a little bit to drink i was not willing to risk driving after drinking. She got mad and started cursing and banging doors. At this point my temper was also starting to go up!

She said ok well she was going to walk and go buy it herself. She left and i told her i was going to lock my door if the night was going to go this way. She attempted to come back in, but i would not open the door because she had been slaming doors and cursing at me. She then called the police and after a while, the police arrived. They told me i had to let her in and i said fine. I told them however the problem is going to persist during the night because she was drunk so i might have to call them back to avoid problems. They said if you call us back we will have to make an arrest to seperate you for the night. I said fine, but if i feel i need to call i will have to call them back.

My wife initially agreed to sleep in the living room for the night. She later came to the bedroom where i was and the situation persisted. I called the police. The dispatch asked me if there was a gate code to allow the police into the gated apartments. I told him the only way in is with a gate card. The dispatch asked if i could see the police upon their arrival and was able to open the gate for them and i said yes, i could. I went and opened the gate for them and they told me to wait in the car, locked up, while they spoke to my wife. They asked me permission to go inside my apt and after a while they came outside with my shoes and jacket and said we are taking you in for the night. I asked them why and he said the only legal way to seperate you at this time is to charge you with a criminal offense and the only thing they can charge me with at this time is public intoxication. I pled with them to maybe allow me have someone come pick me up instead and they refused.

1) The officer told me the main reason he was taking me in that night is to seperate us and try and maintain peace until everyone was, "sober".

2) There is no test for intoxication in a Public Intoxication case, so all the police officer said was, "You are intoxicated because you told me you drank tonight and that your eyes are glicening and your speech is slurred".

3) At the same time while the police claim i was intoxicated, he also asked for consent to go inside my apartment. This to me sounds like he didn`t infact think I was intoxicated to fit the Texas Penal Code: Sec. 49.02. PUBLIC INTOXICATION. (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.

CAN YOU PLEASE ASSES THE SITUATION AND GIVE ME ADVISE ON HOW BEST I CAN REPRESENT MYSELF TOMORROW AND BE ABLE TO COME UP WITH A SOLID CASE FOR MY DEFENCE. PLEASE GIVE ME THE STEP BY STEP PROCESS ONCE I GET INTO THE COURT ROOM SO AS TO GET THE INFORMATION I NEED AND NOT TO BE SHOCKED WITH THE PROCESS. I SEE ATTORNY`S SPEAKING TO THE PROSSECUTION, JUGDE ETC BEFORE THE COURT COMMENCES WHAT IS ALL THAT PROCEEDURE. PLEASE TAKE YOUR TIME AND GIVE ME A THOUGHTFUL RESPONSE. THE COURT DATE IS TOMORROW 04/03/13 AND IT IS AT 0900 HRS.

I CONCEDE THAT YOUR RESPONSE IS ONLY ADVICE AND NOT LEGAL REPRESENTATION. YOU ARE MERELY GIVING ME YOUR OPINION AND SO YOU ARE NOT IN ANY WAY RESPONSIBLE FOR THE OUTCOME OF THIS CASE NOR FOR THE WAY I CONDUCT MYSELF ON THIS DAY.

THANKS,

SILAS
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

The reason most attorneys seemed to not want to represent you on this is because quite frankly it is such a minor offense, a class c misdemeanor with a fine of about $160 and it is treated and considered no different than a speeding ticket.

In order to be convicted of public intoxication, you first have to be in public, not in your own home. Second, just drinking or consuming alcohol even in public is not sufficient, you also have to be proven to be a danger to yourself or others. If they cannot prove 1) you were in public and/or 2) you were a danger to yourself or others beyond a reasonable doubt you must be found not guilty or the charges should be dismissed.

When you appear in court, you state you are not guilty and ask the court for a conference with the prosecutor. When you meet with the prosecutor you need to ask him to dismiss based on lack of probable cause as you were inside your apartment and not in public and also were not a danger to yourself or others and as such neither element of 49.02 can be satisfied.

Generally, the prosecutor will agree and will seek to file the dismissal. If the prosecutor refuses, then based on your information above and if the evidence supports your claims then you need to go to trial as it does not sound like the prosecutor will be able to prove the elements required by law beyond a reasonable doubt.


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Customer: replied 1 year ago.
Sir, if you read carefully, i mentioned that i left my apartment and walked outside, only so that i can badge in the officer to get through the gate. The apartment complex is accessed only through badging in with a gate card. So according to the penal code the definition of a public place includes the general areas in an apartment complex... Parking lot etc.

1) who do i ask to have a conference with the procecutor?
2) Do i have to even mention the fact that, i had infact drank a little bit?
Expert:  Law Educator, Esq. replied 1 year ago.
I understand but walking outside of your apartment to let them in because they rang the bell on the gate is going to be debatable, because had they not needed to be let in, you would not have had to have gone out into the gated courtyard. Also, going out to let them in posed a danger to yourself and others in what way? That is the second part of what the prosecutor has to prove beyond a reasonable doubt.

When you get to court, it depends on the prosecutor handling the cases that day. Some make themselves available in the court prior to court others you have to wait for your case to be called and then you would get up and plead not guilty and state "I request a conference with the prosecutor."

You should not mention the fact you drank a little bit. In fact, you are going to just deny you were even the slightest bit intoxicated and are going to argue you would not have even left your residence had the officer not buzzed for your wife who was intoxicated and that you were not a danger to anyone at the time just allowing an officer entry onto the property and you would ask the prosecutor to consider dismissal or at the very least agreeing to a deferred adjudication with a dismissal (which is where they make you pay a fine and if you have no further violations they will dismiss the case and it would be like it never happened).
Customer: replied 1 year ago.
Yes i understand that telling them the whole true story will reveal that i did infact have a little to drink.

Again in my story i also told u that the police where called twice. First time, my wife called them because i had locked her out! The second time, i was the one that called them because the arguements and situation ensued. At that point i just wanted to go to sleep and didn't want to deal with her anymore. The police already knew that i had something to drink and that's why i didn't want to drive and take her to the store.

So, if the police officer is there and is called on as a witness and asks me what i told him on that day, whether i had something to drink or not what will i say?

Or, if i'm asked by the prosecutor why the police where even at the apartments twice should i or should i not tell them the true story?
Expert:  Law Educator, Esq. replied 1 year ago.
You do not want to tell the prosecutor the whole truth or any truth, you just want to argue your points of evidence and the elements of the offense with him. The reason for this is because anything you tell the prosecutor can be used against you in the court trial.

It is up to the prosecutor to present evidence beyond a reasonable doubt of your being in a public place, being intoxicated and being a danger to yourself or others. Thus, if you tell the prosecutor you were drinking, you give him one step towards proving you were intoxicated.

You do not have to testify as part of your 5th amendment rights. The officer testifying to what you told him is hearsay, he has to present direct evidence of your intoxication, such as your appearance, the odor of alcoholic beverage (since alcohol itself is odorless and colorless and if the officer says he smelled alcohol you raise that on your defense and challenge that statement on that basis).

If the prosecutor asks the officer what you told him, you object and state that is hearsay.

In general, this is a minor case and not one prosecutors generally take to trial. It is more of a nuisance to them and it is really seen as a waste of the court's time and the officer's time to be brought into court. Thus, in most all of these cases they will offer some deal or dismiss if they see you are going to want to go to trial and you have any reasonable evidence to raise in defense of the charges.
Customer: replied 1 year ago.
Ok, so basically the burden of proof is on them. But i'm not sure how you are dismissing the smell of alcohol. Are you saying you cannot recognize the smell of alcohol in one's breath?

There is also the fact that the police officer asked for consent to get inside my apartment... Can i not use that as a counter arguement as to how he believes i was intoxicated while at the sametime argue my consent is valied withought a warrant?

How do i play that to my advantage?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

In any criminal case, the defendant does not have to prove their innocence, the prosecutor must prove guilt beyond a reasonable doubt by proving every element of the charge beyond a reasonable doubt.

Alcohol has no odor or color. The only thing that has odor or color are any additives put in alcohol. Thus, if someone says they smelled alcohol that is not true because it is not possible, what they are smelling is the odor of alcoholic beverage, it seems like a small issue, but legally it is a distinction. If you were drinking pure alcohol, such as plain straight vodka or grain alcohol, it has no smell.

Just because someone is intoxicated does not mean they cannot give valid consent. It all depends on the level of intoxication as to whether or not a person would have been competent to give consent. The fact he asked you to go inside your apartment thus really does not play much into whether or not you were intoxicated, it only proves he did not believe you were intoxicated to the point that you were not able to understand what was going on around you and not able to make reasonable decisions.
Customer: replied 1 year ago.
Yes you are right that it means that he did not believe that i was intoxicated to a degree that i did not underdstand what he was asking... But isn't that the state you have to be in according to the law... To where you are a danger to yourself and others?

I was asking the consent issue because i'm trying to see how i can undermine the fact that the officer believed i was intoxicated? I mean, the behavior and cognitive state does matter interms of proving that one was not so intoxicated such that they where a danger to themselves and others right?

I'm trying to be as prepared as i can for this thing. I know some peaople feel that it may only be a class C misdeminor, but when it comes to applying for jobs and other things that ask those questions... You are at a disadvantage.. especially in a down economy!

You have been very helpful.. please continue!
Expert:  Law Educator, Esq. replied 1 year ago.
You do not have to be in a state where you are incoherent to be a danger to yourself or others. There are people who can be a danger to themselves or others yet they are still coherent, it is all based on the observation of the actual conduct. The officer is going to have to explain in court exactly what you were doing that was a danger to yourself or others. It is based on your actions, so you have to focus on what actions you were doing that were a danger and it is up to the officer to explain those not you.

I understand you wanting to be prepared and I believe you are prepared at this point, but remember you do not want to get into details and facts with the prosecutor because they can use everything you say against you.
Customer: replied 1 year ago.
Ok, i see. But now since he is the only witness in this situation, what happens if he chooses to lie and say, "when i got out of the house, i was screaming and flinging my arms and such", so that is what made him believe i could be a danger to myself and others?

Will i also just dismiss this as hearsay evidence? I know one attorney said, " the court is however, more apt to believe a sworn officers testemony as an expert witness" so it makes police officers more credible in the eyes of the court?

How do i adjust to that?
Expert:  Law Educator, Esq. replied 1 year ago.
We can discuss many "what ifs" and there is absolutely no way to cover them all and it is an exercise in futility that we cannot engage in.

Sure the court is apt to believe officers over a defendant who is making a self serving denial, but you have a right to question the officer on the stand later if this ever comes to trial and between your first court appearance and trial you have time to get perhaps a neighbor who may have been looking out the window who can testify as to what they saw of your behavior.
Customer: replied 1 year ago.
Hey Paul, my case was dismissed... So i want to thank you for your help.

Now Paul, i wanted to ask you what steps do i need to take to file for an expunction?

I spoke to the judge and he said i would have to go to the district courts? Can you assist me with the process... Just your advice of course! What's the best way to do it... Where to research some of the information i will need and also what documents or information should i start putting together for that process?

How much might this cost me? Is it better to do it myself or with an attorney?

All those things. Take your time but, please help!

Silas
Expert:  Law Educator, Esq. replied 1 year ago.
I am very glad this worked out. As this site does not compensate experts in any manner unless the customer leaves excellent service feedback, I have received nothing for all of the time I spent working with you. As much as I love working with customers I simply cannot do so without any compensation.

This is a brand new question and needs to be paid for separately once you click on excellent service feedback for the above information we worked with you on.

I understand our system is confusing to many customers, which is why I am explaining it to you.

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Law Educator, Esq.
Law Educator, Esq.
Attorney At Law
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Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience