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Joshua Zientek

Joshua Zientek’s Answers

121 total

  • I am on probation for a DWI. I just got caught for a public intox. And I live in Texas . Would this violate my probation?

    I was a passenger , my friend was pulled over for speeding . The officer said he had to take me in, and since I had a few drinks he could not leave me at the scene. They arrested my friend for DWI.

    Joshua’s Answer

    As the others said, it depends. Look at the conditions of your probation. If they indicate that it is a violation to be Arrested then it may be considered a violation. If they say conviction is a violation, then simply being arrested is not a violation. Whether or not your probation will be revoked depends on many factors that are unknown from your question: how well you were doing on probation, the judge, prosecutor, county, local politics, etc. Texas Penal Code 49.02 explains public intoxication: 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.
    (a-1) For the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place.
    (b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.
    (c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
    (d) An offense under this section is not a lesser included offense under Section 49.04.
    (e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.

    A lawyer may be able to help you challenge the public intoxication charge which may help minimize your chances of having your probation revoked. Good luck.

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  • What is a usual outcome in a situation involving a motion to adjudicate guilt? The hearing is in two days.

    Two years ago my friend was arrested for assault on a family member and I believe plead guilty without a hired lawyer and was given deferred adjudicated probation for two years. He has fulfilled all obligations for his probation as far as communit...

    Joshua’s Answer

    As was indicated above, there is no usual answer. The outcome will depend upon many more variable than just his lack of success on probation. The prosecutor handling the case, judge, county, probation officer, etc. will affect the outcome. For example, Assault Family Violence is typically a Class A misdemeanor with a punishment range of up to 1 year in jail. You indicate a possibility of 2-10 years in prison. This would be a 3rd degree felony which means there is more than meets the eye. Was it a choking case (3rd degree)? Prior offenses (the case was enhanced by a prior assault charge)? What do the victim(s) want? How bad were the facts of the underlying case?
    Speaking to a local lawyer can give you some idea but much more information is needed.
    Good luck.

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  • What does driving_under the influ_dw means

    My sister n law got charged and they took the kids from her and I'm just trying to figure out is this a serious charge?

    Joshua’s Answer

    It is unclear from your question but it appears she may be facing one of two charges: DWI or DUI. DWI is found in Texas Penal Code 49.0:
    Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
    (b) Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
    (c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
    (d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.

    DUI is found in Texas Alcoholic Beverage Code 106.041:
    Sec. 106.041. DRIVING OR OPERATING WATERCRAFT UNDER THE INFLUENCE OF ALCOHOL BY MINOR. (a) A minor commits an offense if the minor operates a motor vehicle in a public place, or a watercraft, while having any detectable amount of alcohol in the minor's system.
    (b) Except as provided by Subsection (c), an offense under this section is a Class C misdemeanor.
    (c) If it is shown at the trial of the defendant that the defendant is a minor who is not a child and who has been previously convicted at least twice of an offense under this section, the offense is punishable by:
    (1) a fine of not less than $500 or more than $2,000;
    (2) confinement in jail for a term not to exceed 180 days; or
    (3) both the fine and confinement.
    (d) In addition to any fine and any order issued under Section 106.115, the court shall order a minor convicted of an offense under this section to perform community service for:
    (1) not less than 20 or more than 40 hours, if the minor has not been previously convicted of an offense under this section; or
    (2) not less than 40 or more than 60 hours, if the minor has been previously convicted of an offense under this section.
    (e) Community service ordered under this section must be related to education about or prevention of misuse of alcohol.
    (f) A minor who commits an offense under this section and who has been previously convicted twice or more of offenses under this section is not eligible for deferred disposition or deferred adjudication.
    (g) An offense under this section is not a lesser included offense under Section 49.04, 49.045, or 49.06, Penal Code.
    (h) For the purpose of determining whether a minor has been previously convicted of an offense under this section:
    (1) an adjudication under Title 3, Family Code, that the minor engaged in conduct described by this section is considered a conviction under this section; and
    (2) an order of deferred disposition for an offense alleged under this section is considered a conviction of an offense under this section.
    (i) A peace officer who is charging a minor with committing an offense under this section is not required to take the minor into custody but may issue a citation to the minor that contains written notice of the time and place the minor must appear before a magistrate, the name and address of the minor charged, and the offense charged.
    (j) In this section:
    (1) "Child" has the meaning assigned by Section 51.02, Family Code.
    (2) "Motor vehicle" has the meaning assigned by Section 32.34(a), Penal Code.
    (3) "Public place" has the meaning assigned by Section 1.07, Penal Code.
    (4) "Watercraft" has the meaning assigned by Section 49.01, Penal Code.

    Good luck. I suspect there is much more to this situation than the question indicates if her child custody is in jeopardy.

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  • I just got put on deferred adjudication, do I have a conviction until I complete the probation period?

    I know that after I do my probation and everything it doesn't count as a conviction but what about now? When filling out job application what do I put?

    Joshua’s Answer

    You do not have a conviction on your record unless the judge revokes the probation and adjudicates you guilty. When you are placed on deferred adjudication probation, it is just like the name sounds: the judge defers adjudicating you unless you mess up the probation. So, in answer to your question, no you do not have a conviction unless the judge adjudicates one because you mess up a condition of your probation. What you would put on a job application depends on the question. If they ask only about convictions, you can say no. If they ask about arrests, the honest answer is yes. Either way, there is nothing to stop them from potentially checking your criminal history and seeing the arrest and deferred adjudication which is still pending. Good luck.

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  • I got a ticket for MIC, should I hire a criminal defense attorney or just plead guilty or no contest?

    I got a ticket for an MIC and was forced to blow in a breathalyzer. I haven't gone to court yet but wanted to know whether I should get an attorney to represent me or to just go in and represent myself. Im a college student so money can be an issu...

    Joshua’s Answer

    I agree with what the previous poster said. Without knowing more facts, it is difficult to assess any potential defenses. Many times prosecutors will make offers or deals with lawyers that they wouldn't make with people who are representing themselves. Many lawyers offer a free consultation, so it wouldn't hurt to discuss your situation with a couple. Expunction is something more complicated and the procedure will depend greatly on the court you are in and the prosecutor. Also, as was mentioned, depending on the outcome you may have to wait until you are 21 or potentially earlier. Good luck.

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  • How do I get a class b misdemeanor off my record?

    Theft $50 <$500

    Joshua’s Answer

    I agree with the above answer. Unless the case was dismissed and you meet the qualifications for expunction, it is staying on your record. That is unless you went to trial and were found not guilty. If that is the case then you are entitled to an expunction. If you were on deferred adjudication, you cannot get it off your record but you may be able to have it non-disclosed. If the case is a conviction, it is most likely staying on your record except in extreme circumstances. Good luck. I hope you figure it out.

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  • What can be done to shorten probation time?

    i have my 2nd immigration hearing in February which will determine how many days i have in till i have to leave voluntarily. The problem is that i have 18 months of probation for 1st offense for a dwi class b misdemeanor, i have already served h...

    Joshua’s Answer

    If you were convicted and placed on probation for driving while intoxicated under Section 49.04 of the Texas Penal Code then the answer to your question is found in Texas Code of Criminal Procedure 42.12 Section 20 which can be found here:
    Section 20 specifically says that there can be no reduction in in probation time for a driving while intoxicated offense: (b) This section does not apply to a defendant convicted of an offense under Sections 49.04-49.08, Penal Code...
    Good luck.

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  • What is the max amount of time one can get for failure to identify?

    My friend has been charged with a class A misdemeanor for failure to identify. We are Trying to figure out what is the average and most amount of time in inmate usually served for this type of misdemeanor?

    Joshua’s Answer

    If your friend is charged with a class a misdemeanor, the maximum jail time is 365 days and up to a $4,000.00 fine. Probation may be an option, as well as dismissal. Reduction to a lesser charge is also possible. It is very difficult to assess the possibilities in this case without knowing the facts of the case, possible defenses, your friend's criminal history, if any, the judge, the prosecutor, the local political climate, etc. If you want to learn more about the law, you can see it here:
    See Section 38.02. Good luck.

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  • Will they drug test me on the day of court?

    I have court in 2 days & I will not pass a drug test. It's my first arrest for POM under 2 oz. Will they drug test me on my court date? I don't have a lawyer & I don't know what's gonna happen to me. I'm not pleading guilty either

    Joshua’s Answer

    There is no guarantee that you will not be drug tested in court, but, typically people charged with misdemeanor offenses are not drug tested at court. If a judge wants you drug tested randomly, they will typically make it a condition of your bond that you report to a probation officer for random drug testing. If this was the case, you should have been notified of conditions of bond. Additionally, remember anything that is on public record anyone can see. But, to make a long story short, in Montgomery County (if that is where your case is), defendants are not typically drug tested at court. It is not unheard of, but not common. It could very well become required of you in the future even if it is not now. If you are intending to fight the case, I would recommend hiring a lawyer. On your first day of court, the judge will explain that you can speak with a prosecutor but that they are not your lawyer nor is it their duty to explain the law and consequences of any offer they may make you. That is just one of number of ways a lawyer can assist you. Good luck.

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  • Can I be arrested if I am merely a witness to a crime?

    I have prior theft charges and I was at the scene of a theft crime and witnessed it. If I don't cooperate with the police can they charge me with the crime?

    Joshua’s Answer

    Witnesses to crimes are not typically arrested. One scenario in which a witness may be taken into custody is if they are properly subpoenaed and refuse to obey the subpoena. If that happens, a judge may issue a writ of attachment allowing police officers to bring you into court to comply with the subpoena and/or a possible contempt issue. Good luck.

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