A few questions...complex but may be a simple answer

[chabouk]

You're not obligated to submit to any field sobriety test. The "implied consent" law (Transportation Code 724.011) says that by having a DL, you consent to a test of your breath or blood (your choice) if you are arrested for "acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated".

I don't believe the hand-held field breathalyzers are certified for court use, generally. At any rate, you can insist on a blood test, which means taking you to the hospital and having blood drawn.

[gigag04]

"I had been drinking (with dinner), not anywhere near the legal limit, and I had no weapons on me or in the car. What I did have, apparently, was a bad attitude. Again, to keep this short, they started looking at me for a DUI also. I refused to take any field test or breath test, so they arrested me."


SNIP



I am a former Marine Sergeant, and yes, it is something like this among other absurdities, that often cause me to question my service and the dedication I have to my country. I also serve as a volunteer victim counselor for the police department, which I have obviously not put in any more of my time since this all happened. Those that I have helped in that role really needed someone, it is a shame that I am no longer there, dedicating my time to ensure that they get what assistance they need.

I feel like an officer, with a chip on his shoulder, can adversely affect my life regardless of what I have done in the past or what really happened that night. I know I was wrong in turning around that night but my training and my nature would not let me leave. Now I regret something that I should not regret.

And...

I am a former Marine Sergeant

Then perhaps you can take comfort knowing in a confrontation mano-a-mano, all things being equal, you would most likely trump that cop, and he doesn't have a clue.

First of all, I doubt you got a DUI, you probably got a DWI. And if you "refused' to take the tests, I'm willing to bet you refused to submit a blood or breath specimen. Doing so, is a DWI - refusal. If you thought you were "not anywhere near the legal limit" then you should have performed your tests fine and been on your way. Or say you wont perform the SFST's and offer a blood draw. Seems like you aren't taking responsibility for violating a law, and now trying to pin it on an officer that was well within the scope of law and his duties. If you had a self proclaimed bad attitude, then why do you not feel that you were presented as being a Marine with a chip on your shoulder? It's all about perspective.

You being a (former) Marine has nothing to with enforcement action. You broke the law. Now own up to your mistakes. I'm sorry your attorney couldn't get you a better deal, but you are ultimately responsible for your legal situation, not your hired counsel. They work for you...ensure that they perform their job well. I hope you can salvage your CHL from a protection point of view, but I ask that you accept responsibility for your mistake and not blame shift on your attorney and the arresting officer.

As for casingpoint - I seriously hope your last post gets removed by the mods (rule 9). It is blatant and completely irrelevant to the discussion. In my opinion that comment further demonstrates a serious lack of maturity when encountering a problem...."at least I could beat him up." I may be wrong, but if that isn't what your trying to communicate than I ask that you reword it.


I'm not trying to start a fight here, but some of these comments are getting out of line IMO. You shouldn't violate the law and then bad mouth officers when you get caught. I'm glad that they are out there keeping drunks off the roads.

[Keith B]

OK folks, I am going to throw out a towel here. Let's make sure to discuss this incident, but DO NOT get into a rule violation by LEO bashing or the thread will be locked.

[Fangs]

gigag04 has a valid point. I'm not trying to call you a liar, but if you were absolutely sure that your were under the limit, then refusing a breath test was a poor course of action. Not wanting to do the field sobriety test I can understand, since there's lots of room for interpretation by the officer on that, but a breath / blood test would have helped your case tremendously if you were indeed under the limit.

I guess I just don't understand why you would refuse the test and thus assure that you'll have legal troubles / license revocation when you had the option of proving right then and there that you were legally under the limit.

[marksiwel]

gigag04 has a valid point. I'm not trying to call you a liar, but if you were absolutely sure that your were under the limit, then refusing a breath test was a poor course of action. Not wanting to do the field sobriety test I can understand, since there's lots of room for interpretation by the officer on that, but a breath / blood test would have helped your case tremendously if you were indeed under the limit.

I guess I just don't understand why you would refuse the test and thus assure that you'll have legal troubles / license revocation when you had the option of proving right then and there that you were legally under the limit.

I was wondering how long it would take someone to say it.

[AustinTXMarine]

Let me say first, this is in the past, can't change what I could / would have done. My actions were based on the fact that I have never been arrested, and I have always heard (maybe incorrectly) that you never take the "test", breath or field or blood...and yes, I am confident based on my weight that two drinks with a 2 hour dinner did not put me over the limit....but like I said, what is done is done. I had no idea that refusing would cause this much trouble...if I could do it again I would have never gone out for dinner...

I gather people are pretty emotional about this from the comments. I am not saying that I was not wrong. I am asking what do I do now. If my chl cannot be renewed, so be it, I will wait until I can. I just need to know if there is an attorney in Austin who has intimate knowledge of the laws.

As far as bashing LEO....did I mention that up to this point, I have been a volunteer with the department. I am very pro LEO, but that does not mean that they are perfect either. My attitude is certainly to blame, his response to that attitude was within his rights. My only complaint is the reasoning behind the arrest and the fact that they did not care what I had to say long before I declined the test.....but that is a civil action now. Who knows what will happen there.

Thanks to all.

[marksiwel]

I am not saying that I was not wrong. I am asking what do I do now. If my chl cannot be renewed, so be it, I will wait until I can. I just need to know if there is an attorney in Austin who has intimate knowledge of the laws..

I think that should be the topic of this thread.

Does the DPS "KNOW" if you did something that would take away your CHL?
If he can renew does he need to report it on his renewal.
If he cant, what can he do to get his CHL back.

Also I think the charge of obstructing traffic is total bull, and was surprised to learn how often its used.

[AustinTXMarine]

Thank you marksiwel. Very well put.

[gigag04]

When you (attempts) go to renew your CHL they will do a BG check and the Obst. Roadway will pop up. You were arrested for an MB (Misd. class B) and you plead guilty to a different, but because of the TRN # assigned to your arrest, and the DPS # assigned to you during your arrest, the offense will easily show. Further more, when they run your CCH and Rap (computerized criminal history) your MB conviction will show, heck it may even show on the driver's license return, but I doubt it.

I would bet that the DPS CHL office doesn't run backgrounds prior to sending out renewal packets - they just make you do all the legwork of renewing and then deny it during the bg investigation.

If you want a snowball's chance in ....well...you know where, at getting your CHL renewed, you need to first get the class B conviction either overturned, or converted to a non DOC class C offense. I'm not sure what this process entails as my experience is with enforcement, but I bet a defense attorney will know the process for this. I'm sure it would involve lots of money and somehow orchestrating a retrial.

[father]

Did you have a TCLEOSE license for your volunteer work? Was that revoked? Another option is a state that doesn't count a non-violent misdemeanor as a disqualification.

[srothstein]

I think the correct answer is that DPS is a large, maybe even humongous, bureaucracy, and the sections do not talk to each other. The Highway Patrol division does not always report your arrest to the CHL section. A bigger question is who arrested you? I thought it was APD not DPS, and it is very doubtful that the average local officer knows how to report your arrest to DPS CHL section.

As to what to do now, I think you have little choice but to not renew until the time period is up. If I am correct and the CHL section was not told, they would not find out until they ran your name during the renewal background check. Then they might get upset at your not telling them yourself, though I don't think they can do anything legally about being upset.

So, get a lawyer to review your exact record and charges. Since it was probation, was it possibly deferred adjudication? If it was deferred adjudication, you might be okay to renew. I am not sure you can file any type of appeal at this time, based on both the time having expired and the plea bargain ususally bars appeals unless the judge doesn't honor it.

The best lawyer in Austin for gun cases is Charles Cotton. I don't think he can handle a case anymore, but I am sure he can help you find a lawyer that can, if you call him at TSRA headquarters.

[gigag04]

I thought it was APD not DPS, and it is very doubtful that the average local officer knows how to report your arrest to DPS CHL section.

I know that we have copies of the CHL revocation form available for officers...but DWI isn't on there I don't think.

[cbr600]

I know that we have copies of the CHL revocation form available for officers...but DWI isn't on there I don't think.

ftp://ftp.txdps.state.tx.us/forms/chl-81.pdf" onclick="window.open(this.href);return false;

Wouldn't that fall under item 1?

[gigag04]

I know that we have copies of the CHL revocation form available for officers...but DWI isn't on there I don't think.

ftp://ftp.txdps.state.tx.us/forms/chl-81.pdf" onclick="window.open(this.href);return false;

Wouldn't that fall under item 1?

Sure would. I'm also looking at this form: ftp://ftp.txdps.state.tx.us/forms/chl-88.pdf" onclick="window.open(this.href);return false;

As we RARELY encounter Class B + arrests with CHL holders, this isn't something many of us are experts on. That, and I'm pretty sure I have close to a million different forms at my disposal at work. The state requires a form for pretty much everything, in addition to our internal reporting system, and any Probable Cause statements for arrests....


I will check Monday when I go back in and follow up this. Ask me if I forget, please.

[cbr600]

To Steve's point, an arrest is grounds for suspension, not revokation. However, in any job, many employees won't know/remember the standard proccess for events that occur very infrequently (which is why we have fire drills, for example.)