What is the Difference Between Pleading Guilty and No Contest in Texas?

Under Texas law -- pleading "no contest" (or sometimes called "nolo contendere") feels better than pleading guilty and that is about it.

Many people think that if they plead "no contest" that they're not being convicted or being placed on deferred and that nothing will go on their criminal record. This is not true and the wording of the plea is nothing more than a legal mechanism which alleviates the state from their burden of proof beyond all reasonable doubt. If the judge accepts a plea of guilty, or no contest -- they are legally empowered to find you guilty (or place you on deferred) with no additional evidence.

The lone narrow difference is that if you plead "no contest" to an offense in Texas, and if there is a civil case where the criminal case is of significance, a "no contest" plea might not be admissible in that proceeding.

Due to the fact civil cases have even lower burdens of proof than criminal cases and usually settle before trial anyway, "no contest" pleas are somewhat irrelevant to a lawyer's analysis of your criminal case.

All-in-all the biggest issue with "no contest" pleas is that it can leave a false sense as to the outcome of the case. The only way to erase a criminal record in Texas is through an expunction.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article should be considered legal advice. For legal advice you should consult an attorney.

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Getting A Friend or Loved One Out of Jail on a Felony in Texas

This is actually an easy process to understand, but unfortunately it moves at the speed of government. If you are inquiring about a friend or loved one -- I am sure they appreciate you being there for them. Often times, this is the most stressful and difficult part for them and you.

First you need to learn exactly what they are being charged with by the police. Dallas County has a frustrating automated system which is slow to update, so be patient. In the Collin County jail and in city jails such as in Plano it is much easier to visit on the phone with a human who can answer your questions.

Once you find out what they are charged with, your next step is to find out whether they have been before a magistrate judge to set bond. Section 14.06 of the Texas Code of Criminal Procedure gives the police 48 hours to take someone arrested before a magistrate for the purposes of setting bond in felony cases. If they don't, then it triggers an automatic $10,000 bond under Section 17.033. Rarely will anyone wait that long. You can expect someone to be taken before the magistrate within the first 24-hours of arrest -- hopefully sooner.

Unfortunately there is nothing you can do until bond is set. In America the police aren't supposed to play games, drag their feet, and not bring someone to a magistrate. It's one of those things that separates us from places like North Korea and Iran. In theory anyway.

Once the bond is set, you can pay it all yourself. If the bond is too high, you may consider calling a bail bond company. Make sure they are licensed, bonded with the county, and reputable. Bail bondsmen are actually pros at walking people who aren't used to getting someone out of jail in the middle-of-the-night through the system.

If the bond is too high, you can have a lawyer petition a Court to have it lowered. This usually can't be done until a weekday which is when District Judges that preside over Texas felony cases are available.

Jeremy F. Rosenthal

(972) 562-7549

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas. Nothing in this article should be considered legal advice. For legal advice, please consult an attorney.

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Can The Police Force a Blood Sample After a DWI Arrest in Texas?

If they do take your blood the Judge may throw the result out later.

There are two ways the Police can attempt to take a blood sample against your will. With or without a warrant. For a felony DWI arrest, the police do not need a warrant. For a misdemeanor, they do.

Books have been written about search warrants so I can't cover them all here -- but as with many things in the law, it's complicated.

With a DWI blood warrant, the judge allows the police to draw your blood. If you are in that situation, then you must comply with the officer's instructions. Your remedy is to fight the search in court later.

There are all sorts of legal problems with DWI blood warrants in Dallas and Collin County. Arguments can be made the the practice breaks or comes close to breaking several other statutes and laws.

The Texas Transportation Code Section 724.103 states, "...a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer." This language can be argued to be in conflict with the search warrant statute.

Texas Code of Criminal Procedure 14.06 suggests that when someone is arrested, the officer shall take the person arrested before a magistrate "without unnecessary delay." Where the police hold someone while they take 30 minutes or an hour to get a search warrant, it can be argued they violate this provision too.

There are yet more legal issues with regards to whether the blood was drawn properly.

Thus far, the courts have generally lined-up with the prosecution and police. I have had success in having a court set aside a blood warrant because it failed to establish probable cause and as a result, the prosecution was not allowed to present evidence of the blood result to the jury!

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice, please consult an attorney.

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Should You Answer Questions After You are Read Miranda Rights?

Criminal defense attorneys will universally tell you no -- and with good reason. Prisons are full of people who wish they hadn't answered questions.

By reading your Miranda warnings, the police are telling you that they have already decided you're guilty. At best, they are telling you that they think their investigation may wind-up with you being arrested so they are "crossing their t's and dotting their i's."

"But I've got nothing to hide?!?" Maybe so. But there are some bad assumptions you are making with that good faith rationale.

The main problem is that you are trying to convince someone that has already made-up their mind. That is like trying to convince the vending machine that stole your dollar to give it back.

Also -- you don't know what the police are looking for with their questions and they do. They may want just one key admission to satisfy a legal element they may already know but can't otherwise prove. You may tell them worlds of information they would have never known and now they've got a better case against you that they ever dreamed. They're happy letting you think you're winning them over.

Police bank on the fact most of us were raised to respect and cooperate with authority. But an officer's job is to investigate crime and build cases against people. Either they can prove all the elements of a crime or they cannot. If they've got no evidence of certain elements -- the only way they can get it is out of your mouth! There is no advantage to talking with them -- and if there is -- there is no harm in consulting a lawyer first!

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy F. Rosenthal is an attorney licensed to practice law in the State of Texas. This article is not intended to be legal advice. For legal advice, you should consult an attorney.

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What Happens if They Didn't Read Me Miranda Warnings?

I'm often told by people that, "they didn't read me my Miranda warnings." Sometimes this is important and sometimes it is not.

Miranda refers to a 1960's U.S. Supreme Court case where a conviction was reversed because the police did not advise a Defendant of his rights prior to getting confessions for several offenses. I'll spare you the legal treatise on the topic but just understand it's a highly complicated area of law.

Miranda operates to exclude statements or confessions. Your right to remain silent and your right to a lawyer are generally triggered when you are in "custodial interrogation" and you are being questioned by the police or other governmental agency. Custodial interrogation is too complicated to go over in this brief article but I will say that a typical traffic stop will not qualify as custodial interrogation under the current law in Texas.

Texas has codified Miranda in Article 38.22 of the Texas Code of Criminal Procedure. That statute has additional protections above and beyond what Miranda required. An example of an additional protection is that to be used, an oral confession must be made in the presence of some sort of electronic recording device.

To know how significant a Miranda violation may be depends on the facts of the case. Take a DWI for example. Most of the State's case will be conduct, breath, and performance on field sobriety tests. These things are considered "non-testimonial." Even if the police violate Miranda and the person confesses to having consumed alcohol but doesn't believe they're drunk -- the Miranda violation will have little, if any, impact on the outcome.

Contrast a drug possession case. In those cases, sometimes the only evidence someone was in possession of contraband such as marijuana are statements or confessions after the drugs are found. If an officer violates Miranda before a confession is given, the violation may very well change the outcome of the case.

As a final note, I again cannot underscore enough that Miranda is a complicated issues. Each case is as unique as a snow-flake so you should ask a lawyer specifics.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice, you should consult an attorney.

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The Difference Between Felony and Misdemeanor DWI in Texas.

All the "tough-guy" talk from law enforcement about DWI's in Dallas and Collin Counties in Texas has created a lot of confusion. Most are relieved to hear a first arrest is a Class B misdemeanor and a second is a Class A. But when do DWI's become felonies?

Several ways. What makes the identical act of driving a motor vehicle in a public place while intoxicated (which is normally a misdemeanor) a felony is generally additional or surrounding factors.

It is important to note that every jail term I describe below may be probated in certain circumstances.

DWI with a minor 15 years-old or younger is a State Jail Felony punishable between 180 days and 2 years jail and/or a fine not to exceed $10,000.

If you've been convicted of DWI two times before, then the third DWI is a 3rd degree felony carrying a possible prison sentence between 2 and 10 years and/or a fine not to exceed $10,000. Additional convictions pile-up like bricks with the enhancements getting progressively harsher. For details on specific enhancements for a 4th DWI or greater, consult an attorney.

Intoxication assault is typically a non-fatal accident where someone is seriously hurt or disfigured and is a 3rd degree felony. The prosecution must prove not only that the defendant caused the accident, but the accident was caused by the intoxication -- and that a person suffered "serious bodily injury."

Intoxication manslaughter is the same as intoxication assault, except that the accident causes someone to die. It is a second degree felony carrying a sentence between 2 and 20 years prison and a fine not to exceed $10,000.

The Texas Legislature has allowed for the "stacking" of punishments for intoxication assault and/or manslaughter. What this means is that if there is more than one victim (hence multiple counts), those punishments can be added together whereas most felony punishments run concurrently (or together).

Enhancements for felony punishment can be complex in Texas, so it's essential to discuss the specifics with an attorney.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy F. Rosenthal is an attorney licensed to practice in Texas. Nothing in this article is intended to be legal advice. For legal advice, please consult an attorney.

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Punishment for a 2nd DWI in Texas.

Convictions for DWI's are like stacking bricks higher and higher. To recap, a first DWI is a Class B misdemeanor in Texas. A second DWI is a Class A Misdemeanor. The punishment range is between 72 hours of jail and 365 days, an/or a fine between $0 and $4,000.

A 2nd DWI means that you've been convicted of the first -- regardless of how long ago that may have been.

Like a 1st DWI, probation is often the result of a conviction for a 2nd DWI -- but clearly there is more jeopardy involved in a 2nd offense. The maximum probation is 2 years and the probation itself gets stickier. For example, in Texas we have what is called jail as "a term and condition" of probation. What this means is that the Judge can send you to jail for up to 30 days as a part of your probation. The minimum community service for a 2nd DWI is 80 hours.

Additionally, the Judge is required to place an interlock device on your car when you are originally released on bond from jail in the case while you await trial. You can expect it to stay on during probation with a conviction.

As for driver's license suspensions -- the term of the suspension increases to 2 years (from the max of 180 days). A person can qualify for an occupational license to assist them in driving to work, however, if the 2nd DWI was within 5 years of previous law enforcement contact involving alcohol, then the person doesn't qualify for the occupational for 180 days after the suspension begins. This is what DWI lawyers in Dallas and Collin Counties call a "hard suspension." It means no driving for six months.

Also the surcharge is $1,500 per year for 3 years. Again, the surcharge is $2,000 for a breath test score over 0.16 for 3 years.

In Texas, some County Courts at Law have DWI programs for 2nd time DWI convictions. In Collin County they have courts with intensive treatment but that offer some incentives to join the program such as lesser fines.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy F. Rosenthal is licensed to practice law in the State of Texas. This article is not intended to be legal advice. For legal advice you should consult an attorney.

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What is the Result or Punishment for a 1st DWI in Texas?

In Dallas and Collin County where I practice, DWI's are statistically very winnable. Today's blawg, though, deals with what happens if you plead guilty or are found guilty at trial.

A first DWI in Texas is a Class 'B' misdemeanor. A first DWI conviction in Texas is not a felony. Even as a misdemeanor it stays on your criminal record forever.

The punishment range for a Texas DWI is between 72 hours an 180 days of jail and/or up to a $2,000 fine. Don't panic! That time is usually probated -- meaning you're on probation for DWI and only if you violate your probation do you look at going back to jail. The maximum time you can be on DWI probation is 2 years. I can safely say in my experience as a prosecutor and a DWI defense lawyer the vast majority of persons arrested for DWI spend no time in jail after their original arrest. Of course, no lawyer can guarantee you any result.

With the punishment range as it is, your lawyer must admonish you that it is legally possible for you to be assessed 180 days and a $2,000 fine. This is not to minimize the consequences, but most experienced DWI lawyers in Dallas and Collin Counties will tell you that result is highly unlikely.

You should also be aware that if you're convicted of DWI and your breath test result was a 0.15 or above, you're legally required to have a deep lung device installed on your car for at least half of the probation period.

Also there is a surcharge for renewing your driver's license of $1,000 upon conviction for 3 years following the conviction. The surcharge goes up to $2,000 per year if your breath and/or blood is a 0.16 or higher.

Tomorrow, I'll discuss the punishment for a 2nd DWI.

Jeremy F. Rosenthal

(972) 562-7549

*Jeremy F. Rosenthal is licensed to practice law in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice please consult an attorney.

Please visit my website!

Your First Court Appearance for a DWI in Texas.

When you get your first court appearance letter in Collin or Dallas county, Texas, for a DWI arrest – don’t panic! The court date isn’t a trial and is usually a hurry-up and wait event.

Court appearances serve two functions from the court’s point of view. First is that it makes sure you’re honoring your bond, and second it’s making sure that you and the prosecution are moving towards a resolution. Keep in mind that courts in Collin and Dallas counties have hundreds if not thousands of cases to keep up with – not just yours!

If you don’t come to court, a warrant can be issued for your arrest. Some Courts – mostly in Dallas County – will excuse your appearance on a first or second announcement IF YOU HAVE A LAWYER. You should never assume your attendance is excused, however, and should always clear it in advance.

There is an excellent chance that you won’t even see the judge on a first setting. The court date is mostly so your lawyer can communicate with the prosecutor about things like the police report, the dwi video, the breath test results, and possible plea bargains.

If you do see the judge it’s almost always going to be your choice. If you chose to plead guilty on the very first setting, you’ll see the judge or if you come to court without a lawyer, many judges will lecture you on the dangers and disadvantages of not having a lawyer in front of the court reporter.

Most of the time a first appearance in Dallas and Collin counties results in the case being “passed” for another announcement – meaning you’ll come back in another month for another court date. By the second month, though, hopefully your lawyer will have been able to do even more legal research and factual research based on what they learned on the first setting so they can have a better picture in your case.

If you don’t have a lawyer, some court personnel may imply that it’s a better idea to visit with a prosecutor before seeking a lawyer. Here’s what I think about that -- http://wp.me/pNRMa-4.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice you should consult an attorney.

What Happens After an Arrest and Release from Jail on a DWI?

You've been released from jail after the worst night of your life after a DWI arrest. Now what?

I practice in Collin and Dallas counties in Texas. Other Texas counties may have different quirks of how they do things – but are (hopefully) within the bounds of Texas law.

You’re immediately responsible for two things when you get released.

First is that if your driver’s licenses was taken by the officer because you either refused the breath test or the machine reading was above a 0.08 – you have 15 days from the date of the arrest to file for an Administrative Law Review Appeal (“ALR”). If you don’t file your appeal, your temporary driver’s license (the yellow sheet of paper they’ve given you at the jail) will be valid for only 40 days from the date of arrest. If you do appeal – the suspension is put off until your hearing, which is usually farther out than 40 days. If you win the ALR, your license doesn’t get suspended. If you lose the ALR, you may be eligible for an occupational license.

Second is that, in all likelihood, you’ll get a notice to come to Court. Collin County will mail your court date usually somewhere between one and two months after your arrest -- but it can be sooner so watch your mailbox! Dallas gives you a case number and has you check in every few weeks until the case is filed – at which point you can begin evaluating the nuts and bolts of your case.

Collin County will sometimes give you an immediate court date a week or so after your release from jail on a DWI for the purposes of complying with Texas code provisions that require a judge to assess whether you need an interlock device (deep lung device) on your car. You should get this notice upon leaving jail if you get it at all.

In tomorrow’s blawg, I’ll discuss what you can expect on your first court appearance for a DWI.

Top 5 Mistakes When Hiring a Criminal Defense Lawyer Countdown -- No. 1

This week I’m counting down the top 5 mistakes people make in hiring a criminal defense attorney.

#1. Hiring a lawyer that pleads everyone guilty.

I approach every case looking for a way to win – not why we should lose. Sometimes the paths to victory are many, sometimes they are wide, and sometimes they’re just a sliver of hope. But they’re there if you look hard enough. I consider pleading guilty a last-option in most instances in Texas state courts in Collin and Dallas counties.

This means I set a decent percentage of them for trials or motions to suppress. But there are lawyers who advise their clients to plead guilty virtually every time.

I rarely question another lawyer's professional judgment. And let’s be straight – pleading guilty or not guilty is exclusively the client’s decision. But a lawyer’s advice typically plays a very heavy part.

I struggle to think of reasons why a particular lawyer simply never puts the State of Texas to task. Maybe they’re intimidated. Maybe they lack confidence. Maybe they’ve made the immature mistake of sitting in judgment on their client who possibly made a mistake.

Whatever the case may be – trial is an important option and a constitutional right. It should at least be discussed and considered. Not having that option severely restricts your chances for success.

The cure for this is simple. When interviewing your lawyer you should ask them how often they take cases to trial? When was the last time they tried a case? How many cases like yours have they tried in the past couple of years?

The answers will be revealing. I’m not suggesting the “tougher” lawyers are better – but you should consider hiring someone that doesn’t take options off the table and who isn’t afraid to pull the trigger and take the state to trial.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy F. Rosenthal is licensed in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice consult an attorney.

Top 5 Mistakes When Hiring a Criminal Defense Lawyer Countdown -- No. 2

This Week I’m Counting Down the Top 5 Mistakes People Make When Hiring a Criminal Defense Lawyer.

#2: Hiring a Lawyer that Gives You Unreasonable Expectations

I’m licensed to practice in Texas. Here it is unethical for a lawyer to promise a client certain results. I can’t imagine it’s permissible in any other state.

I often visit with people and my view of the case is much brighter and more optimistic than they anticipated. But making a promise there is even a sliver of a chance I can’t keep helps no one.

Every single case – DWI, marijuana, felonies, or whatever, is like a snowflake. Each set of facts has it’s own unique nuances which may turn the laws in different ways. There’s also the unpredictability of humans such as prosecutors, witnesses and not least of all – juries.

A Doctor can’t predict how the human body will react to treatment with 100% certainty – and a lawyer can’t predict how the human judicial process will react with 100% certainty. Good lawyers recognize the variables and do their best to put those variables in perspective.

Every lawyer takes an oath to zealously represent their client. Any lawyer you hire should be willing to fight for you and defend your case aggressively. A guarantee isn’t part of the equation.

Another thing to consider about a lawyer that promises results – is that it’s not smart from the lawyer’s perspective! Even if that lawyer can deliver on their guarantee often – they’re breaking their pledge probably just as often. If a lawyer makes a mistake like this in their own judgment – how can you expect them to be smart with your case!

Jeremy F. Rosenthal, Esq.

(972) 562-7549

Top 5 Mistakes When Hiring a Criminal Defense Lawyer Countdown -- No. 3

This week I’m counting down the top 5 biggest mistakes people make when hiring a criminal defense attorney.

#3: Hiring an Attorney That Isn’t Qualified

Economists estimate that a criminal record can reduce your lifelong income by as much as -30%. For someone that would normally earn $50k per year, that comes out to a loss of $450,000 over 30 years!

Not only do you need a lawyer if you’re charged with a crime, but it had better be one that knows what they’re doing!

A licensed attorney in the State of Texas can practice virtually any field of law ranging from mergers, bankruptcy, truck crashes all the way to criminal. There are slight exceptions here and there. Just because someone is licensed doesn’t mean they’re qualified or experienced enough to handle your criminal case!

Board certified lawyers are lawyers that have qualified with the State Bar through recommendations from their peers and from taking a test. In Texas, the only designation recognized by the State Bar in board certification is for the general field of “Criminal Law.” While many lawyers hold themselves out as members of organizations such as the “DUI College,” this is not an official designation but more of a private membership. Being board certified is never a bad thing, but it doesn’t give you, as the client, permission to turn your brain off when interviewing that lawyer to see if they are right for your case.

The best way to flesh-out whether an attorney your talking with is qualified for your particular case is to ask pointed questions. Ask how many cases of the same offense have they handled in the past? How familiar are they with the local rules of where your case is pending? What percentage of their over-all case load is your type of case?

The lawyer’s answers will tell you a lot!

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy Rosenthal is an attorney licensed to practice in Texas. Nothing in this article is intended to be legal advice. For legal advice please consult an attorney.

The Top 5 Mistakes You Can Make When Hiring a Criminal Defense Lawyer Countdown -- No. 4

This week I'm counting down the top 5 mistakes people make when choosing and hiring a criminal defense lawyer.

#4 Hiring Someone Who Only Tells You What You Want To Hear

Sometimes in life we have to choose from a bad option or a worse option. A lawyer that needlessly sugar-coats your criminal case whether it be a DWI, a theft case, a drug possession case or a felony isn't doing you any favors.

There's an age-old legal saying, "he who represents himself has a fool for a client." One of the main reasons for this saying is having legal problems is very stressful. A lawyer should be detached enough from your situation that they can objectively review all the sides of your case.

Every lawyer should fight relentlessly for the optimum result for their client. I'm not suggesting otherwise. But your lawyer must also be like a mirror and give you the most accurate reflection of your case so that decisions can be made based on reality -- not fantasy.

Lawyers are just like doctors in that we have to have good bedside manners. This means that a good lawyer is realistic about bad news and can put it in perspective. Just because there's a problem doesn't mean a great goal in the case still can't be achieved.

Be wary of a lawyer that is afraid or hesitant to disagree with you or tell you news you don't want to hear when you're interviewing them.

A lawyer's ability to give unbiased, detached and unprejudiced advice is a necessity. It is just as critical as their ability to fight for you.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy F. Rosenthal is licensed to practice in the State of Texas. Nothing in this article should be considered legal advice. For legal advice, you should consult an attorney.

The Top 5 Mistakes You Can Make When Hiring A Criminal Defense Lawyer -- Reason No. 5

For the next five days, I'll be counting down the top 5 mistakes people make in hiring criminal defense attorneys regardless of whether the case is a DWI, Marijuana, other drugs, theft, assault, felonies, or any other type of case.

#5: Hiring a Criminal Defense Attorney Based Solely on Price:

I'm not going to lie -- the cost of a criminal defense attorney may very well be a good indicator of how good that lawyer really is. Sometimes the best guy around is the priciest and the guy who charges the least may be that way for a reason. There are plenty of other things to consider about judging a lawyer.

The more the lawyer's time is in demand, the more it's worth, and the higher the fee. The less they are in demand, the less they charge. That is the theory, anyway. The bad assumption in that argument, though, is that the lawyer is in demand (or not in demand) because they are good (or bad) at what they do.

Consider this -- a lawyer with a slammed schedule is slammed because they're just better at marketing than other lawyers in the community. Or a lawyer who charges a lesser fee has a smaller office and over-head doesn't dictate their fees. These things punch big holes in the theory above and there are countless other things which dictate what a certain lawyer may charge.

Should the fee be an important factor in hiring a criminal defense lawyer? Absolutely. Abraham Lincoln said it best about legal fees, "...In this way the client knows he has a lawyer, and a lawyer knows that he has a client."

My point is that money shouldn't be the only factor! Ask tough questions. Are you comfortable with the answers? Do they make sense?

Your gut and intuition are often the best tools in assessing lawyers and sometimes price can be misleading.

Jeremy F. Rosenthal

(972) 562-7549

*Jeremy Rosenthal is Licensed to Practice in the State of Texas. Nothing in this article is intended to be legal advice. For specific legal advice consult an attorney.

When can You see the Police Report in a Criminal Case?

Texas law makes it tougher than you might think. Believe it or not it could be the middle of trial before you're allowed to see it! But don't worry, in Texas state courts it rarely, if ever, happens that way regardless if it's DWI, theft, assault, drugs or whatever.

Two quick points -- lawyers look at police reports the same way doctors look at x-rays. We key in on things you may not notice because they'll have legal significance. If you don't already have a lawyer -- consider one. Second, this discussion isn't for traffic tickets and municipal fines in Texas though some of the same rules may apply.

Police departments don't have to give you the report in a criminal case unlike a civil car accident. Texas Government Code 522.108 is an exception to the Texas Public Information Act for law enforcement in criminal matters.

Many prosecuting agencies like Dallas and Ft. Worth have "open file" policies meaning the defense attorney has access to the entire file. Collin County has more restrictive policies but the lawyer can usually view the report in advance of the trial.

And you do have rights in all this. The Texas Code of Criminal Procedure Art. 39.14 provides that if you show "good cause" to the Court, the Court can order the prosecution to produce a whole laundry list of items from their file prior to trial. The prosecutor has legal an ethical duties to produce favorable evidence to you. Brady is generally any evidence which is exculpatory (proves innocence) or which is favorable to the defendant -- though the issue is complex.

Again, without legal training and experience as a legal practitioner -- getting your hands on a police report can be useless. If the case is serious enough for you to want a police report, it's probably serious enough for you to get a lawyer!

Jeremy F. Rosenthal, Esq.

(972) 562-7549

www.ndlaw.com

*Jeremy Rosenthal is an attorney licensed in the State of Texas. Nothing in this article should be considered legal advice. For legal advice you should consult an attorney.

Do you Need a Lawyer for a Drug Case in Texas?

Drug cases are very technical in nature and are typically more defendable than you may think. They're not hopeless and by just talking with the prosecutor yourself, you're precluding almost any chance of acquittal. This is for several reasons.

First is that the evidence must be seized lawfully. In Texas, Article 38.23 of the Texas Code of Criminal Procedure holds that unlawfully seized evidence cannot be admitted into evidence. If the prosecution has no evidence, they lose because they have the burden of proof. The sands are constantly shifting between what is reasonable police conduct and what is not under the 4th Amendment to the U.S. Constitution.

If you're reading this article for your own case, you probably know by now that police can sometimes be highly aggressive, persistent, and sometimes manipulative in their goal of searching your person, car, or home. When they legally reach too far -- and it's an easy and common mistake for them to make -- a judge may throw out all or some of the evidence against you. This happens where I practice, in Collin County, Texas, all the time.

Also the legal definition of "possession" in the Texas Penal Code under Section 1.07(a)(39) means "actual care custody control or management." Merely because you were in the same vehicle or area where drugs were found doesn't mean the evidence is legally or factually sufficient to demonstrate "possession" and could also mean acquittal from a judge or jury. And remember -- the state has to prove you are guilty. You have the right to remain silent during the arrest and all through your trial and never have to prove your innocence!

Though the Texas legislature and courts have made recent pushes towards rehabilitation for marijuana cases and other prescription abuses such as hydrocodone or oxycontin, the government's version of "help" could still mean labeling you a criminal for the rest of your life an subjecting you to treatment which could be inferior to treatment you could get in the outside world.

Having an attorney in a Texas marijuana or other drug case can help you evaluate your legal position in the matter and if necessary, can help mitigate the charges against you.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

www.ndrlaw.com

*Jeremy Rosenthal is a licensed attorney in the State of Texas. Nothing in this article should be considered as legal advice. For legal advice you should contact an attorney.

Do I Need a Lawyer for a Theft Case in Texas?

Being convicted or even getting deferred adjudication on a theft case is bad news in Texas. There are countless unseen consequences.

It is one of a handful of charges that the stigma attached to your criminal record in practically every case is worse than any punishment if you are convicted or get deferred. Not only that, but the judicial system and many governmental agencies consider theft to be a "crime of moral terptitude." This can cause wide ranging problems from immigration consequences to professional licensing denial or suspension such as being a doctor, lawyer, or any other job that requires a license such as nursing or being a real estate agent.

Explaining a theft away on your criminal record is a hard thing to do whether it was a pack of chewing gum or gold bullion they accused you of taking. Think of the disadvantage you'll have 15 years from now in applying for a job handling money when your competition won't spend 5 minutes of the interview talking about a previous theft charge -- but you will!

The worst mistake you can make if you have been charged with theft is to blow it off because perhaps you don't think you can win, or it was a prank, or someone else really did it and you just happened to be there and you think you can explain it away later.

In Collin County, Texas, where I practice, I have seen juries be tremendously compassionate to persons accused of theft and acquit them. The State must prove their case beyond all reasonable doubt and a good lawyer will demand the jury acquit you if the State can't meet their burden regardless of what happened. Theft charges must typically be aggressively defended. Even if the case is very difficult, there may be other options to lessen the blow but those are legally complex. A theft charge is no time to learn how to be a lawyer on your own!

Jeremy F. Rosenthal, Esq.

www.ndrlaw.com

(972) 562-7549

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be specific legal advice. For legal advice, consult an attorney.

Do I Need a Lawyer in a DWI in Texas?

Yes! The laws against DWI are getting nastier and nastier with no end in sight. Fairness and logic seem to have been lost in the shuffle. The one thing the legislature can't take away from you is your constitutional right to an advocate! It's the only way to try and level the playing field.

Probably the biggest mistake you can make in a DWI is to assume your case is a lost-cause and not even seek a lawyer.

First, as any prosecutor will tell you, DWI's can and do very frequently end in acquittals. Jurors are just like you. In a DWI they truly presume you innocent unlike other cases. They listen much to the dismay and chagrin of the prosecutor and the police officer who would have them believe there is only one side to the story -- their side!

Additionally, Judges frequently suppress improper traffic stops or other improper police contact. This means that where an officer has been overly-aggressive in finding a reason to pull a car over or the officer didn't have the right to visit with you... all or some of the evidence may be thrown out by the Judge if improperly attained pursuant to Texas Code of Criminal Procedure 38.23. In those instances field sobriety tests, breath tests, and even blood tests can be inadmissible for the prosecution.

Also blood and breath tests can be discredited through different scientific arguments and sometimes you can demonstrate to the jury the test was simply improperly conducted. The equipment is fallible and jurors are often surprised at just how imprecise these machines truly are.

The practice of blood warrants is controversial. Forcibly putting a needle in someone's arm would be a 2nd Degree Felony under the Texas Penal Code (aggravated assault with a deadly weapon) if it weren't conducted under the color of law. Regardless, DWI enforcement has lost so much perspective that this practice is justified to solve first-time DWI offenses that are Class B Misdemeanors. As a bragging point, I am the first lawyer that I know of in Collin County to have a DWI blood warrant thrown out by a Judge!

There is so much at stake in a DWI for your future that a short article hardly does it justice. I've only addressed the tip of the iceberg as far as consequences and punishment. There is so much other red-tape such as driver's licenses suspensions, surcharges for driver's license renewals, and deep-lung-devices being ordered on your car, it hardly makes sense to go into this process alone.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

www.ndrlaw.com

*Jeremy Rosenthal is licensed to practice law in the State of Texas. None of the content herein is intended to be legal advice, specific or otherwise. For legal advice, please contact an attorney.

How do I Select a Lawyer in a Criminal Case in Texas?

In Texas, if you have been charged with an offense you have three basic choices. You have the choice to plead guilty or not guilty, the choice to testify on your own behalf, and the choice to select a judge or jury to asses punishment if trial is unsuccessful. These are not simple choices, fun choices, or easy choices.

Your lawyer should be able to give you as complete a picture as possible with regards to the facts, the law, and the probable outcomes so that you are comfortable making these important decisions. Additionally, your lawyer should make it their business to be a skilled advocate for trial and/or dealing with the prosecutor or law enforcement. You need to be comfortable with your attorney and no one attorney is perfect for everyone.

Don't be afraid to ask questions in your consultation. Appropriate questions are how many times an attorney has handled this type of case, what percentage of this type of case comprises their current case-load, and how often do they take cases to trial? These simple questions can tell you a lot about the lawyer such as their willingness and ability to explore every angle of your case.

Some lawyers can be very aggressive in their rhetoric but no lawyer can guarantee you results in any circumstance. Be very leery of lawyers who do. You can ask a lawyer their 'win-loss' record, but don't expect many revealing answers. Cases, people, and their legal situations are like snowflakes. Sometimes victory means complete acquittal and an expunction and sometimes victory means dodging a legal bullet to the head and taking a flesh wound instead. Our profession is one of managing countless variables and cramming it into 'win-loss' context really doesn't give anyone an accurate picture. When I get asked that question, I joke with people that I'm trying to make the playoffs!

Finally, don't be afraid to visit multiple lawyers. Attorneys that are good at what they do shouldn't be bothered by this. This is your critical decision, after all.

Jeremy F. Rosenthal, Esq

McKinney, Texas

(972) 562-7549

www.ndrlaw.com

*Jeremy is licensed to practice in the State of Texas. Nothing in this should be construed as specific legal advice and you should consult an attorney for any specific questions.

What is an Expunction in Texas?

A criminal arrest record can be like the legal equivalent of cancer. It can cost you a job, a promotion at work, or countless other opportunities. The damage is done when someone hears about the arrest. Most aren't interested in details that you were acquitted or the charges were dropped.

An expunction is the legal equivalent of curing the cancer that is a criminal arrest. A state district judge orders the records stemming from a criminal arrest destroyed. This includes records which were part of the arrest or that reference the arrest such as court records, the district attorney’s file, and even transcripts of the trial. When people refer to having something “taken off” their record, an expunction is generally what they mean. This also means that the state’s agencies can’t give information about your these arrests to private companies who gather criminal data for distribution for private background checks. Tex.C.Crim.P. § 55.03(2) even allows for a person with an expunction to “deny the occurrence of the arrest…” in certain circumstances. The code has specific details you should be aware of for that provision.

What is unknown by most is qualifying for an expunction can be somewhat difficult. Though expunctions can be highly complex in certain circumstances where (where multiple allegations stem from the same arrest for example) – most are cut and dry. If prosecution against you has been barred as a general rule, you are probably entitled to an expunction. Prosecution can be barred where you are acquitted by a judge or jury, where the statute of limitations has expired and the case hasn’t been filed, or if prosecution has been barred for some other reason.

It is a common misconception that getting deferred adjudication ‘magically’ drops the criminal arrest record on it’s own for any offense. Deferred only entitles you to an expunction for (most) class “C” misdemeanors in Texas. These are the lowest level of offense, which include traffic tickets and petty offenses ranging from minor in possession, possession of drug paraphernalia, and theft below $50 in value as examples. Even though you weren’t taken to jail on a class “C” doesn’t mean there isn’t a record either! An Expunction may still be necessary.

Deferred adjudication for offenses from class “B” misdemeanors and above may entitle you to apply for a petition for non-disclosure which generally limits who can know about your criminal case but is different from an expunction.

An expunction doesn’t happen on it’s own. A state district judge must approve your petition for expunction. This is a very technical process and is commonly handled by lawyers.

Jeremy F. Rosenthal

Nolte, Drain & Rosenthal, PLLC

McKinney, Texas

(972) 562-7549

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas. This article is not intended to be specific legal advice. Please consult an attorney for questions regarding this subject matter.

Should I Just Talk to the Prosecutor in my Criminal Case?

Don’t expect anything useful to come from that. Many times people think because they made a mistake or because no one will believe their side of the story – they need to just visit with the prosecutor, take their medicine and get it over with because it’s hopeless. Even if your case is difficult, there are issues a lawyer can address with you fight the case or to limit the damage so the case doesn’t hurt you 20 years down the road.

Criminal cases in Texas are set on what Courts call a docket. Courts have hundreds and sometimes thousands of cases to deal with at a time. Not everyone can have a trial all at once. When you go to Court after being released from jail, it serves two main functions. First is so the Court knows you aren't skipping out on your bond and second is so that your case can move towards a resolution – either a plea bargain, dismissal, or trial.

If you go to Court without a lawyer, often Court staff such as the Bailiff or the Court Coordinator will suggest you visit with Prosecutor before you inquire about getting an attorney. While this may seem like a convenient idea – there is very little in it for you. This is not to suggest they are trying to dupe you, but protecting your criminal record takes a back seat to their lunch hour.

Our system is adversarial. The prosecutor may be a nice person. Most are. But they are your legal opponent and frankly most have never defended anyone so they don’t understand nuances to keep your record clean. Most have never had to crack a book on these issues. Many will make lazy representations about your rights, about the effects of a guilty plea, and will leave you feeling hopeless.

Regardless of what a prosecutor may tell you, whether something can possibly "come off" your record in the future is a complicated legal issue and it doesn't happen by itself. Not only that, but it's not the prosecutor's job to point out legal and factual weaknesses in his own case which can result in acquittal.

It’s also a common misconception that prosecutors will retaliate against you for talking with a lawyer and be tougher on the case. Police may grimace when you ask for a lawyer, but the prosecutor appreciates working with a lawyer on the other side.

Talk to a lawyer!

Jeremy F. Rosenthal, Esq.

(972) 562-7549

www.ndrlaw.com