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hris Perri Law is a criminal defense law firm located in Austin, Texas.

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Chris' Blog

The blog of Chris Perri Law, written by Chris Perri and Shannon Perri. Read the latest in exciting cases where justice is served.

Filtering by Tag: expunction

Texas Law Fellowships Honors Chris Perri with Public Service Award

Chris Perri

At the Texas Law Fellowships' Excellence in Public Interest Awards ceremony, Chris Perri received The Excellence in Public Interest Award for his service. For the past two years, Chris has volunteered his time supervising law students running an expunction clinic for indigent clients in the community. Chris is considered a statewide expert on expunction law, and he believes anyone who has had their case dismissed should be able to clear it from their arrest record.

Remember, in the court of law, we are all presumed innocent until proven otherwise. An arrest is not proof of guilt, yet its presence on a background check can still create employment and educational obstacles. 

Chris was honored to be recognized along with these other outstanding members of the legal community: Claire Marie Bow, Paul Quinzi, Chris Roberts, and Bryan Zubay. 

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You may not go to jail for pot possession in Austin, but you can’t ignore the ticket

Chris Perri

It’s a beautiful December day in Austin, and Sue, a student at the University of Texas, wants to celebrate the end of the semester with friends at the Greenbelt. While relaxing in the 70-degree weather near a swimming hole, one of Sue’s friends lights up a joint. Sue doesn’t usually smoke pot, but she’s cutting loose today, so she closes her eyes as she takes a long drag off of the joint, the stresses of the semester exhaling out of her with the sweet smoke of her friend’s kindbud. She then opens her eyes, and her momentary relaxation gives way to full-fledged panic as she spots a uniformed police officer on a bicycle stopped on a nearby trail. The officer calls out for her to bring him the joint. Sue’s mind and heart race, as she remembers what happened to her older brother in their small town where he was arrested for marijuana possession and spent the night in jail.

The cop sternly warns Sue about the illegality of smoking marijuana: “This isn’t Colorado, young lady.” However, to her delight, he bikes off after handing her a citation that looks almost exactly like a speeding ticket. Sue can’t believe her luck in not getting arrested! Maybe she won’t even have to tell her parents. There’s a date listed on the ticket to report to “Justice of the Peace – Precinct 5” on December 22. Sue’s going to be back home for the holidays by then, so she later tosses the ticket on a stack of old books in her apartment, figuring that she can just deal with it when she returns to school in January for the spring semester.

 

Given that the ticket doesn’t look a whole different than a traffic citation, it’s understandable that Sue might think it’s no big deal. In reality, Sue’s offense is a class B misdemeanor, which is punishable by up to 180 days in the county jail and a $2,000 fine. Unlike most counties in Texas, where you’ll be cuffed and carted off to jail for anything worse than a class C misdemeanor traffic offense, Travis County is different. Here, the police are authorized to issue tickets for misdemeanor marijuana possession (four ounces or less), along with a few other class B misdemeanors (driving with license invalid, theft, graffiti, criminal mischief). These tickets are called “field-release citations” because the police release the defendants without booking them into jail. The rationale behind this policy is that arresting people takes several hours, resulting in fewer police officers patrolling the streets.

However, just because Sue received a citation doesn’t mean that she’s avoiding an arrest record. Instead, the arrest occurs during what is called a “jail walkthrough” when Sue reports to the Justice of the Peace at the time designated on her ticket. Below, I’ve outlined the steps of the process:

1.     Report to Justice of the Peace – Precinct 5 (located at 1000 Guadalupe Street in downtown Austin) to receive paperwork and instructions about the walkthrough process.

2.     Report to Pretrial Services in order to apply for a personal bond.

3.     Return to the Justice of the Peace, who will magistrate the defendant, meaning that the defendant is informed about constitutional rights and the penalty range of the offense.

4.     Obtain approval of the personal bond from the Justice of the Peace.

5.     Report to the Travis County Sheriff’s Office at their bonding desk in the courthouse.

Upon reporting to the sheriff, Sue is officially arrested. The sheriff’s deputy would take her fingerprints and a mugshot. Sue would then be released from custody without ever being handcuffed. She would also receive a copy of her personal bond with a court date.

Following this “arrest,” Sue’s case would be assigned to one of the county courts-at-law, and her lawyer could then begin resolving your case by requesting discovery materials (offense reports, video/audio of the incident, etc.) and negotiating with the prosecutor.

Like many people issued similar citations, Sue doesn’t immediately realize the importance of reporting to the Justice of the Peace on the date and time designated on the ticket. This is a very bad idea because failure to appear results in an arrest warrant. There is no “jail walkthrough” for Sue if she is later arrested on a warrant, and the process of getting booked in and out of jail would take 12-24 hours. Her initial fear of spending a night in jail would become a reality.

Here’s what Sue should do immediately upon receiving the citation: contact an experienced attorney, such as Chris Perri Law, to assist her with the jail walkthrough process. An attorney can waive the third step of the process (magistration by the judge) in order to ensure that Sue is one of the first people to report to the sheriff’s office for the booking procedures. Often, Chris Perri Law can get somebody through the entire process in less than an hour. Without an attorney, the process can take up to four hours because there’s often a long line of people with similar tickets, and the sheriff’s office only has two deputies (at most) working on the walkthrough process at any given time.

Chris Perri Law also would assist Sue in resolving her case in a manner that leads to an eventual expunction of her arrest record. Even though Sue might feel like she was never arrested because the jail booking procedure was so quick, information about the offense is automatically forwarded to the Department of Public Safety (DPS), who enters it into their crime records database. Background checks will reveal the incident unless Sue successfully expunges the records of the arrest. Given that she’ll be graduating from UT and on the job market in a few years, it’s very important that Sue hires an experienced attorney who knows how to ensure that her arrest record from this incident is ultimately wiped clean.


***Sue is not a real person.

Chris Perri fights to expand expunction rights

Chris Perri

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Expunction rights have been a hotly debated area in the legal community for quite some time. The State Legislature amended the expunction statute in 2011, and there has been no case law yet to help decipher its full interpretation since. However, Chris Perri, widely known as an expunction expert, has filed an appellate brief with the Third Court of Appeals (in DPS vs GBE) to advocate for his client and clarify once and for all the interpretation of current expunction law.

First, let’s back up and explain what expunctions are and why they are so significant to clients as well as our society. Expunctions are the formal process of literally erasing all criminal records arising out of a particular arrest. One of the fundamental tenets of our law is that everyone is deemed innocent until proven guilty. Thus, just because someone is arrested of a crime does not necessarily mean they will be found guilty. Let’s say someone is arrested but their case ends up getting dismissed; without a formal expunction, the arrest will stay on their record, following the client for the rest of his or her life. Employers, schools, licensing boards, etc. will still see the arrest and will most likely approach the individual as if they are guilty of that crime. That’s why expunctions exist, and it’s so vital to get one if your case outcome allows it. (Many attorneys, such as Chris Perri strive to obtain expungible dispositions for their clients, which mean that their clients would have the ability to obtain an expunction at a later date.) Essentially, expunction rights make it so that individuals don’t get judged by their arrest, but by their case’s outcome, as it should be. It’s about protecting our basic rights – innocent until proven guilty.

However, expunction law can get murky, as with the issues arising in the case Chris is handling on appeal. Chris’ case involves a common issue that arises over and over; thus attorneys throughout the state are watching closely to see what the Third Court of Appeals holds.

In Chris’ case, his client was arrested for a DWI, and it was his first time in the criminal justice system. His client’s primary goal was to obtain a legal outcome that would allow him not to have the words ‘DWI’ on his permanent record. Because the state’s case against him was relatively weak, they were open to a compromise. In the client’s case, he didn’t want to pursue the risk of trial, and was willing to plead guilty to a lesser charge – “reckless driving” – and take time already served in jail as his sentence.  Another common outcome in Travis County is for defendants to accept deferred adjudication on a reduced charge of “obstruction of a highway,” whereby the defendant agrees to extensive probation terms, such as drug and alcohol education and community service. This a common outcome for first-time DWI offenders, especially when the state feels they may not be able to win a guilty verdict at trial, yet aren’t comfortable dismissing the case altogether.  

What Chris is arguing is that since his client did not plead guilty to a DWI, the client should be able to expunge the DWI arrest, since having an arrest on one’s record virtually implies guilt and will force the client to battle the stigma of this crime for the rest of his life, even if there was not enough evidence for him to be convicted. Yet, the state is arguing against Chris that the arrest itself wasn’t necessarily a “wrongful arrest”, so it should stay on his record, defeating the purpose of the compromise for the lesser sentence.  Chris won this issue at the trial court level, where the judge remarked that DPS’ interpretation of the statute could “chill” plea bargaining across the state, as criminal defendants charged with DWI might not be willing to enter into a plea deal if they cannot later expunge the dismissed DWI charge. Since approximately 95% of all criminal cases result in a plea-bargain deal, chilling such plea bargaining would potentially clog up an already crowded system and lengthen the process further.

If the Third Court of Appeals sides with the State, there will be a massive shift in how attorneys advise clients to proceed. It will mostly likely generate an incentive not to plea bargain, but for all clients to go to trial on their case, as often the incentive to plead to a reduced charge is to maintain as best a criminal record as possible. If clients know they will still have the arrest for the original, higher charge on their record, more people may find it worth it to take the risk of trial.  

The Third Court of Appeals’ findings on Chris’ appeal will have a dramatic effect on how criminal law is practiced by many criminal defense attorneys. Most likely, the Court will issue an opinion in the next six to eight months. Stay tuned to our blog for any updates on expunction rights.

New Statute May Expand Expunction Rights

Chris Perri

On Tuesday, I gave a presentation to the Austin Criminal Defense Lawyer's Association on expunction law. One of my appeals has been used as authority for denying expunctions to defendants in the multiple-offense context, and I showed my fellow defense lawyers why this case shouldn't be used in this way. I also spoke about the new expunction statute, which adopts a charge-based approach to expunctions. I've been advocating for this charge-based approach for several years, and it's nice to see the Legislature listen. The expunction statute is very complex, but a simple example can show readers what I'm talking about. Take a defendant charged with a DWI. It's considered a great outcome to have the DWI dismissed in exchange for a client taking deferred adjudication on a reduced charge of Obstruction of a Highway. (Note: a deferred adjudication involves a term of probation ordered by the court). For many years, defense attorneys expunged the DWI arrest from such a client's record. However, some prosecutors and judges have interpreted the appellate case I worked on (Travis County District Attorney v. M.M.) as holding that the DWI was not eligible for expunction if the client took probation on a different charge arising out of the same arrest.

The argument between defense lawyers and prosecutors hinges on the interpretation of the term "arrest" in the expunction statute. Does arrest mean the charge that the defendant seeks to expunge (the charge-based approach), or does it mean all charges arising from a single arrest incident (the arrest-based approach)? I've advocated for the charge-based approach whereby courts view each charge as a separate arrest and determine the expungibility of that individual charge without reference to other charges arising from the arrest incident. The most recent Legislature made amendments that clarified its adoption of the charge-based approach. That means that clients can expunge their DWI arrests from their records even if they took a conviction or deferred adjudication on a reduced charge.

My talk on Tuesday provided other defense attorneys with litigation tools to help expunge their clients' arrests in situations where multiple charges arise out of a single arrest incident. I've attached my PowerPoint Expunction Law in the Wake of MM, in case anyone's interested in taking a look.

Due to the complexity of the expunction statute, it's important to hire an experienced, knowledgeable attorney when you're seeking to expunge your records. I'll make sure that you're expunging every possible charge, and I'll fight for your rights if we encounter any opposition from the prosecution.