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David B. Frank

David Frank’s Answers

14 total

  • What happens after I get a signed order of Expungment in Texas?

    Let me explain this a little bit more. In 2011 I was charged with DUI, but I was never convicted because it was dismissed. Two years later I seeked an expungement and spoke with a lawyer. I ended up getting a signed order of expungement and now Im...

    David’s Answer

    A valid Texas Expunction Order requires Texas public agencies that are listed in the Order to remove or destroy your arrest record. As soon as the Order is signed by a judge, you have the legal right to deny the occurrence of the arrest but the physical removal of the records from databases and file folders may take a few months. Your attorney should contact the District Clerk's Office periodically to ensure that every agency that received the Order has complied with it either by physically returning the arrest records to the District Clerk or certifying with the Clerk that the records have been destroyed. If any agency fails to comply, your attorney must contact them immediately to bring this to their attention.

    Federal Law Enforcement agencies like the FBI, DEA, and ICE (formerly INS) are not required to comply with state expunction statutes and they will maintain your arrest records despite an Expunction Order to the contrary. That means that an FBI background check will show your arrest record. In fact, in some cases, a conviction expunged under state law remains a conviction for purposes of federal law, see Ramirez-Castro v. I.N.S. 287 F.3d 1172, 1175 (C.A.9,2002).

    Perhaps as important however is the fact that private businesses that publish criminal history information are not required to comply with state expunction statutes and they will ordinarily choose to continue disclosing your arrest records. As a practical matter however, these businesses regularly refresh their data and, after a period of time, the expunged criminal history information from Texas DPS will not reflect your arrest information. These businesses may sometimes voluntarily agree to remove your criminal history information if you provide them with a certified copy of the Expunction order.

    No expunction is bullet proof and there is always a risk that others may find out about the arrest. The decision as to whether to disclose an expunged arrest is a matter that needs to be carefully scrutinized after considering the legal requirements, the precise questions being asked, and the potential for discovery of the arrest records despite the expunction. For instance, if an employer discovers an undisclosed arrest and questions you about it, they may be more disappointed by the lack of disclosure that the arrest itself. It is sometimes more advantageous to report that you were arrested, that the case was dismissed, quashed, or acquitted, that you expunged the records, and that you didn't have to report it but in all candor wanted the employer to know. This approach requires a careful weighing of factors to come up with the best decision.

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  • We hear that people can't pay bound are waiting in jail for over a year to get a public defense lawyer. Is that truth?

    My son was arrested for 1st offense aggravated assault with serious bodily injury. We can't pay bond or lawyer. He says that some inmates has been there over a year trying to get a public defense lawyer and nothing is moving.

    David’s Answer

    I assume that you are asking about the Travis County system for appointing criminal defense lawyers to indigent defendants. Lawyers are appointed almost immediately after arrest in Travis County. The attorney is notified by Court Administration and is required to make contact with their client within 24 hours. If your son has not had any contact with his court-appointed lawyer, you may want to call Court Administration at 512-854-9244.

    Jail cases usually move along faster than non-jail cases. The wait to go to trial however can be lengthy. If your son can get out of jail, either with a bondsman or on a personal bond, he will not have to wait in jail to resolve his case. There may be some affordable alternatives that you can discuss with an attorney.
    David Frank

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  • Can I get crimes for Aggravated Robbery (4 counts), and 2 counts of Burglary of a habitation, sealed or expunged?

    I spent 10 years flat in TDC for these crimes and am having a hard time finding employment. Is there statute on sealing this, or is there a way to get my record expunged/sealed? It has been 9 years since any convictions.

    David’s Answer

    I'm afraid you may be saddled with these convictions. If you spent time in prison for these felonies then you have final convictions which can neither be sealed nor expunged.

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  • I was charged with a dwi with a b.a.c of .75 and its my first offense will I go to jail?

    No injuries, no accidents, made a wrong turn into a center lane and then turned on my flashers and began to correct my mistake by fully turning into a nearby parking lot. When i was pulled over.

    David’s Answer

    A breath test of .075 means you are off to a good start. The prosecutor assigned to your case will review your Field Sobriety Tests and the officer's incident report before making an initial offer. Depending on the evidence, you might be able to avoid a DWI conviction. This might mean a refile or reduction to a lesser charge or an outright dismissal of the DWI. However, rather than proceeding uner the breath test score, the prosecution could proceed under a theory of impairment. They might feel that they can prove the case by showing that because of alcohol or drug consumption you lost the normal use of your mental or physical faculties while operating a motor vehicle in a public place. They can do this even if the breath test alcohol is low but they believe drugs were involved.

    It will be important to view the video of your arrest to assess your driving and general demeanor. You should aggressively defend this case to avoid a conviction. As you may know, there are deadlines that come up quickly in a DWI defense and you should file a request for a hearing before the deadlines pass.

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  • What is the statute of limitations on Hot Checks?

    I received a letter today from the District Attorneys Office stating that they have 6 hot checks out for me in the total amount of 732.46. One of the checks is dated in 2004, and the others in 2007. My main concern is that these are not even my ch...

    David’s Answer

    The statute of limitations is two years. The limitations period begins with the date of the incident. If the case were filed any time within two years from that date then statute of limitations defenses would not apply. It might be helpful to have the handwriting on the checks compared with your own to show that you did not sign the checks. Your first priority should be to have the case dismissed. Feel free to give us a call at telephone number 512-499-0969. David Frank

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  • I was given a DUI in TX, refused breathalyzer, agreed to blood test, but they never drew my blood. why?

    I was in a minor accident, had nothing to drink for several hours. I was given a roadside sobriety test, did well, was asked to take breathalyzer and refused. I was told I was arrested, and would have to give a sample for a blood test. Once boo...

    David’s Answer

    There are a number of reasons that the police did not draw your blood. If a judge believed there was probable cause for the arrest then under current law there would have been probable cause to draw blood. If the blood draw would have occurred more than two hours after the stop the reliability of the test becomes less useful to the prosecution. It may be that the police simply failed to do the blood work in the time allowed and decided not to proceed. I would need to know more but with a good performance on your field sobriety tests you should be in a good position to fight this case.

    David B. Frank, Austin, Texas
    Telephone (512) 499-0969

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  • Will the repercussions of being charged with Public Intoxication be worse if I already have a DUI on my record?

    Last night I was outside of a bar, about to get a cab home. Before I was able to, I was approached by police who told me I was getting arrested for public intoxication. Yes, I was drunk, but not to the point of being so impaired that I was any kin...

    David’s Answer

    You do need to be concerned about your new case. If you are on probation for DUI/DWI and you pick up another alcohol related offense, your probation is potentially threatened by the new offense. You should make every effort to seek a dismissal on the Public Intoxication case. I do need to mention that these posts are read by the public including court officers like your probation officer and the Judge so use caution and do not admit that you were drunk. Those statements are not inadmissible against you at a hearing to revoke probation.

    You can reach me at telephone 512-499-0969. Good luck.

    David B. Frank

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  • I'd like to know if it is possible to get a Class C misdemeanor expunged from my criminal record.

    I recently had an FBI background check done for work at an airport, and a marijuana possession charge in Texas from 1999 came up, and disqualified me from working at that site. I completed differed adjudication and was under the impression that t...

    David’s Answer

    You cannot "expunge" a Deferred Adjudication but you may be eligible for an Order of Non-Disclosure under § 411.081 of the Texas Government Code. An Order of Non-Disclosure prevents the Texas Department of Public Safety from disclosing your criminal history to most private employers, landlords, and the public. The information may still be maintained by DPS and it can be disclosed to law enforcement and several professional licensing agencies.

    To be eligible for an Order of Non-Disclosure, the deferred adjudication must be completed and a “discharge and dismissal” should be contained in the clerk’s file. In Travis County this is done as a matter of course but you may want to check that there is an actual discharge and dismissal in the file.

    You cannot have any new offenses since the date of discharge except for Class C traffic violations and you are ineligible if you have ever been placed on deferred adjudication, regular probation, or been convicted for any of the following offenses:

    Murder §19.02;
    Capital Murder §19.03;
    Aggravated Kidnapping § 20.04;
    Injury to a Child, Elderly Individual, or Disabled Individual §22.04;
    Abandoning or Endangering a Child §22.041;
    Violation of a Protective Order or Magistrate's Order §25.07;
    Stalking §42.072;
    Any offense that would cause you to register as a a sex offender; or
    Assault with Family Violence.

    Everyone's case is different and there may be unique circumstances that apply in your case. If you have further questions, give us a call at telephone (512) 499-0969.

    David Frank,

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  • I witnessed a crime and have been summoned to testify, however I do not wish to be seen by the defendant. How do I proceed?

    A.) I am one of at least 30 eye-witnesses, most of which had a better vantage point than me. B.) I do not wish to be identifiable to a person on trial for murder. C.) My testimony will be vague and full of "I'm not sure"s anyhow; I saw little an...

    David’s Answer

    If you have been subpoenaed to testify in court then you have a legal duty to appear. You can ask a lawyer to attempt to quash the subpoena but based on what you have indicated there may not be a legal basis to quash. The law provides the defendant with the right to confront his accusers which included the right to cross-examine the witnesses in court.

    The better route might be to indicate your fear and apprehension to the prosecutor. With 29 other eyewitnesses, the prosecutor is going to need to be selective with who they use in court. The factors you have listed make you less than ideal. Your identification may be tainted by poor encoding, loss of memory, and intoxication. If you are going to be a bad eyewitness the prosecutors will probably choose other witnesses in your place.

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  • If a business closes down and i have a felony from them can it be takin off my record?

    if a business closes down and i have a felony from them can it be takin off my record?

    David’s Answer

    If you have been convicted of a felony with regular probation, a penitentiary trip, or even serving time in the county jail under 12.44(a), then your conviction will remain on your permanent criminal record. The fact that the crime was committed against a company that went out of business does not change your status as a felon and you cannot remove a conviction from your record on that basis. The only remedy available to you would be to seek a pardon from the Governor's office which is a very difficult process.

    On the other hand, if the judge did not find you guilty and instead placed you on deferred adjudication probation, then you might be eligible for an Order of Nondisclosure. Talk to a criminal defense lawyer about your specific case and see if you are eligible.

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