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Questions Answered by Herman Martinez
3 Answers | Asked in DUI / DWI for Texas on
Q: Without any blood test, breathalyzer or field sobriety can they still convict a DUI?

Incident is over 2 years ago and all they have is body cam footage of car being off the side of road and suspect being belligerent. Is that enough evidence alone for a conviction? No prior DUI's before this

Herman Martinez
Herman Martinez answered on Jul 11, 2020

I would add that having a breath/blood test is not the only way to prove a DWI/DUI. In the State of Texas intoxication may also be proven by proving beyond a reasonable doubt that a person lost their normal use of their physical faculties or mental faculties by the introduction of alcohol or drugs... Read more »

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1 Answer | Asked in Criminal Law for Texas on
Q: I was charged with two counts of manufacturing and delivery why wasn't I charged with just possession

I got pulled over and they searched my vehicle

Herman Martinez
Herman Martinez answered on Mar 17, 2020

There are a lot of factors...some examples, are the amount of drugs, the amount of cash in your possession, if you had anything that indicates that you would be selling like individual bags or scales. Nevertheless, you are presumed to be innocent. Try to hire the criminal defense lawyer you feel... Read more »

2 Answers | Asked in Criminal Law, DUI / DWI and Traffic Tickets for Texas on
Q: I was charged with DWI .The police report says the reason I was stopped was for no seatbelt. I wasn't ticketed .

At arraignment th police report says that I was stopped for no seatbelt .I was charged with DWI he claims the oder of alcohol and glossy eyes. On the way out I stopped at traffic ticket office and there is no seatbelt ticket under my i.d Was that a lawful stop?

Herman Martinez
Herman Martinez answered on Mar 5, 2020

The no seatbelt reason is the probable cause for stopping you. A police officer does not write the ticket for the no seatbelt because a DWI is a more serious crime. Nevertheless, a judge may find that the probable cause was not reasonable. Hopefully, you landed in a friendly Houston Harris County... Read more »

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1 Answer | Asked in DUI / DWI for Texas on
Q: After completing a pretrail diversion for a dwi ,if I were to get another one does that count as my first one?
Herman Martinez
Herman Martinez answered on Mar 2, 2020

Yes, you will be considered a first offender because once you complete a pretrial diversion your case is dismissed.

2 Answers | Asked in Criminal Law for Texas on
Q: Unsatisfactory Termination of Probation

If I have a Unsatisfactory Termination of Probation(USTP) from 23 years ago....is there any way to go back now and successfully complete this probation in order to get an expungement?

Herman Martinez
Herman Martinez answered on Mar 2, 2020

Unfortunately, even if you would have satisfactorily completed your probation you would not have been eligible for an expungement. On the other hand, if you would have satisfactorily completed a deferred adjudication you may have qualified for a non disclosure. A non disclosure only “erases”... Read more »

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2 Answers | Asked in Criminal Law for Texas on
Q: Will you get two for one sitting in county jail before you're sentenced for State Jail
Herman Martinez
Herman Martinez answered on Feb 10, 2020

That is a misconception in Harris County, Texas. The days spent are not counted 2 for 1 towards the State Jail sentence. Nevertheless, the State Jail facility may provide up to a 20% reduction to the sentence. Also, you get credit for every day that someone was in custody.

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3 Answers | Asked in Criminal Law for Texas on
Q: If the state picks up charges on my boyfriend for continuous family violence would us getting married before trial help
Herman Martinez
Herman Martinez answered on Jan 31, 2020

Unlikely, these type of charges are filed against boyfriends and husband alike. The fact that they are married does not impact the case.

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2 Answers | Asked in Domestic Violence for Texas on
Q: My boyfriend was charged with ASSLT FAM/HOUSEHOLD MEM W/PREV CONV and is on parole...how much time could he be facing

even if I did not press charges...

Herman Martinez
Herman Martinez answered on Jan 28, 2020

The assault charge you mention typically has a range of punishment of 2-10 years in TDC. If he has one prior TDC trip it can be increased to 2-20 years. If he has two separate TDC trips he could be facing 25-life. I want to be clear that I am not saying he will do the enumerated time. In fact, he... Read more »

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1 Answer | Asked in DUI / DWI for Texas on
Q: My aunt is in jail for revoking probation and violating 4 conditions on a DWI 3rd conviction. Any chance she gets out?

I found her parole conditions and she really didn’t take any of the bullet points seriously. Is there any chance the judge will still grant her probation? Or would she have to serve out her guilty verdict of 5 years?

Herman Martinez
Herman Martinez answered on Jan 27, 2020

Yes, it is possible for the judge to keep her on probation. It depends on her violations, how long she has been on probation etc.

1 Answer | Asked in Criminal Law and DUI / DWI for Texas on
Q: i have PTD termination court , how can i fight it?

I was making payments and showing up to my appointments until my p.o got fired . I never got reassigned and my calls never got a call back. I got pregnant lost my job and stopped making payments . Now i received a court letter saying i need to show up to court . I have a newborn I’m scared I’ll... Read more »

Herman Martinez
Herman Martinez answered on Jan 27, 2020

I answered this question above...

1 Answer | Asked in Criminal Law and DUI / DWI for Texas on
Q: I have PTD Termination court ! What can happen?

I got my first DUI , my first offense and they put me on the PTD program , i showed up. signed in made payments until my probation officer was let go. I never got reassigned a new one and would still show up i only had 230 left . I was pregnant and lost my job and just had my newborn this month but... Read more »

Herman Martinez
Herman Martinez answered on Jan 27, 2020

You should a hire a local lawyer to help you with this situation. I have handled similar situations in the Houston area where the person did not go back to jail. Good luck to you!

2 Answers | Asked in Criminal Law and Appeals / Appellate Law for Texas on
Q: Does the state have to prove I didn't have concent to use the vehicle

Husband used mothers truck with keys in it to go to the store and mother called police. Husband went to jail and is facing unauthorized use of motor vehicle.

Herman Martinez
Herman Martinez answered on Jan 27, 2020

Yes, the State must prove that the driver did not have the effective consent from the owner of the vehicle.

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2 Answers | Asked in Criminal Law for Texas on
Q: A girl lied about her age on Okcupid, saying she was 27 when she really was 16.

When she told me her real age, I ended all contact with her. Can I still be charged with a crime?

Herman Martinez
Herman Martinez answered on Jan 27, 2020

I am assuming the two of you engaged in some type of sexual relationship. Unfortunately, as the law stands today the answer is yes. Despite her deception she is unable to consent to the sexual intimacy with you because of the age difference. You should contact a lawyer asap to help you moving... Read more »

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1 Answer | Asked in Criminal Law and DUI / DWI for Texas on
Q: when is to much drug testing to much.. misdemeanor dwi, 11 months on never failed ua or breathalyzer. 3 times this month

i have been on probation for 11 months and on a call in system every single day since i started.. Never failed my in car breathalyzer, UA or alcohol test... have been getting tested AT LEAST once a month, the last three months have been twice.. In January I will be going for my third random test..... Read more »

Herman Martinez
Herman Martinez answered on Jan 27, 2020

Your lawyer can always request the court to stop the drug testing based on the length of time you have been “clean.”

5 Answers | Asked in Criminal Law for Texas on
Q: can I get a non disclosure agreement?

I have a class A misdemeanor assault causing bodily injury from 2015. The victim is now in prison for assault with a deadly weapon. Which no one believed happened to me at the time due to lack of evidence that I was attacked. I did defend myself that’s why I pled guilty to assault. The victim was... Read more »

Herman Martinez
Herman Martinez answered on May 9, 2019

If your case was dismissed you qualify for something better than a non a disclosure. It is called an expungement. It is better because the Government will ordered to remove and destroy all your records pertaining to that arrest. A non disclosure allows the Government to keep your records, but keeps... Read more »

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3 Answers | Asked in Civil Rights and Criminal Law for Texas on
Q: My son recieved a DUID. I told the hospital and police they do not have permission to do a blood test and they did
Herman Martinez
Herman Martinez answered on Apr 12, 2019

This is a timely question because recent case law is in your son’s favor. You should contact a DWI lawyer asap to discuss the circumstances.

Good luck to you!

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2 Answers | Asked in Criminal Law for Texas on
Q: I live in a county in East Texas. The county maintains a public web site that features criminal details case details.

including mug shots that is freely available to the general public

without caveat.

Is there any time limit to how long they can keep a persons record essentially

public? (Misdemeanors from A to C and Felonies of course.)

Herman Martinez
Herman Martinez answered on Mar 24, 2019

The most certain way is to get your arrest records expunged.

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3 Answers | Asked in Criminal Law for Texas on
Q: I’m being charged with agg sexual assault of a child, Can I get a copy of her statement she wrote without an attorney?

My daughter claims I did this to her 7 yrs ago and wrote a 5 page statement and I would like to read it. I don’t have attorney yet but can I get a copy of her statement she submitted?

Herman Martinez
Herman Martinez answered on Mar 24, 2019

Most Texas Distict Attorney offices would not allow to happen. Perhaps, your county is different.

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2 Answers | Asked in Criminal Law for Texas on
Q: how do I subpoena the court for evidence and body camera footage?
Herman Martinez
Herman Martinez answered on Jan 23, 2019

Your lawyer will be provided that once they do a discovery request. Once they receive it you will be able to see the body cam that is provided.

In Texas, the Morton Act requires the State to give all non privileged evidence to the defense attorney.

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2 Answers | Asked in Criminal Law and Juvenile Law for Texas on
Q: If a 17 year old wants to fight a 20 year old and it's mutual, will the 20yo get a charge?
Herman Martinez
Herman Martinez answered on Dec 15, 2018

Please note that once a person turns 17 they are considered an adult in Texas. A mutual fight is typically not a crime. Nevertheless, if one person goes too far with the assault or takes out a deadly weapon during an assault that started without weapons it could rise to the level of a crime.

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