Texting While Driving -- 23 times More Likely to Cause an Accident

A recent Virginia Tech Transportation Institute (VTTI) study shows drivers who are texting are 23 times more likely to be involved in a crash than those who aren't texting. The study also shows drivers increase risk of a crash by reading (3.4%), applying makeup (3.1%), dialing handheld device (2.8%), or talking on a handheld device (1.3%). The study doesn't directly compare texting while driving to driving while intoxicated.

VTTI's information release can be found here.

Texting while driving is illegal in 18 states and the District of Columbia. In Texas, texting is illegal while driving for teenagers. Also handheld devices cannot be used in school zones by anyone. Some Texas cities are looking at passing local ordinances that could try broaden that law. Those offenses are class c misdemeanors punishable by a $500 fine.

Currently Texas Transportation Code 545.401 covers reckless driving defined as driving with willful and wanton disregard for public safety. That offense could conceivably cover texting while driving and is a "hybrid" offense punishable by a $200 fine but up to 30 days jail.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

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

www.thecollincountylawyer.com

Probation FAQ's

Probation, also called community supervision, is where the Judge suspends all or part of the sentence in a case for a certain period of time. In the probationary period, the person typically completes community service and other requirements such as classes or drug testing.

A person on probation in Texas must complete and abide by "terms and conditions" of probation. Typically a person cannot commit an offense against the State of Texas or any other state as a minimum. Other requirements range from requiring the defendant to report changes in address, changes in employment, and new arrests, if any.

Difference between Deferred and Probation

Deferred adjudication is where you have not been convicted. Probation is where you have been convicted for the offense. While on deferred, you must still complete community supervision as if you were on regular probation for most offenses. The terms can be used interchangeably, but they're not really identical.

Probation Eligibility

If you've never been convicted of a felony in Texas or any other state you are usually eligible for probation. Convicted felons are tricky and it is best to consult a lawyer about your specific situation. Prosecutors have differing policies against offering probation for certain offenses such as drug trafficking, robbery, and crimes against children.

Can I have Probation Records Expunged?

No. Expunctions for cases above class C misdemeanors require acquittal or another legal bar to prosecution. You may be eligible for a petition for non-disclosure, however.

Is there Probation for Federal Offenses?

Yes, but it is likely that if you get probation in Federal Court that you will still serve jail at some point. There is no parole in Federal prison so almost the only way you can be released from prison without serving all of it is to serve part of it on probation.

Can I be Released from Probation Early?

Yes, you are generally eligible for early release in Texas state courts for probation 1/3 of the way through probation and if you've completed every requirement. There is no early release for DWI offenses, certain drug offenses, and sex crimes.

Can I do Rehab Instead of Probation for Drug Crimes?

It depends on the case and the willingness of the prosecuting attorney to all an arrangement like this. More often than not, a prosecutor or Judge may include the rehab as part of probation but not necessarily replacing probation altogether. This is the type of deal an experienced attorney may help you reach with the prosecutor.

What if I don't Like my Probation Officer?

Do your best to get along with them even if that means swallowing your pride. They hold the keys to your jail cell. In their defense, probation officers have a very difficult job. The better you get along with them, the more they appreciate you... but they can be extremely damaging to your case if they think you're a problem. If they become verbally abusive or play games you may consider involving an attorney though getting a different probation officer can be difficult.

Probation Violations

If you violate probation, your probation officer can cause a probation revocation proceeding (or an adjudication proceeding if you are on deferred) to occur. You'd be re-arrested and the only issue before the Court is whether you violated your deferred or probation. If the state proves even one violation more than a preponderance of the evidence, the judge can convict you of the deferred, or revoke your probation. If this is done, you may be required to serve all or part of the underlying jail sentence. Often on revocations, however, the judge may extend probation or take some lesser action.

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 specific legal advice for any situation, you should consult an attorney.

www.thecollincountylawyer.com

Felonies are Legal Versions of Cancer on Your Future

Felonies give the government, citizens, and employers the legal right to discriminate against you. There is no such thing as a small felony charge.

The textbook consequences of felony convictions and deferred adjudications are the punishment ranges for such offenses which include fine and jail time. But felonies act as trap doors due to the mountains of the collateral civil statutes which gut your rights.

Specific examples of collateral consequences of felonies are their impact on professional licensing. The Texas State Board of Medical Examiners must suspend licenses for felony convictions. The State Bar of Texas disbars attorneys convicted of felonies, and the Texas Department of Insurance may not issue a certificate of authority to act as an insurer if a corporate officer, or member of the board of directors has been convicted of a felony involving moral turpitude or breach of fiduciary duty. There are many Texas occupational statutes which affect your ability to make a living as a felon for large and small jobs alike.

Other examples include limitations on an individuals ability to adopt or become foster parents especially in cases involving child abuse or neglect or spousal abuse. In a divorce situation, a parent who is a felon may be denied custody.

Yet other examples are a felons ability to own firearms (which is prohibited by federal law). Felons cannot sit on juries. Convicted felons cannot act as executors of estates in probate proceedings. Felons can't vote. Many countries won't allow felons to emigrate or even visit. The list is endless. Not only that, but the state of Texas and the federal government in some situations reserve the rights to blur the lines between a felony conviction and deferred adjudication (meaning some laws say words to the effect, "for the purposes of this statute, deferred adjudication shall be treated as a final conviction.")

The bottom line is this -- felonies are bad news. The collateral damage of felonies are well above and beyond just the minimum and maximum jail or prison sentence ranges. It is crucial that you address any and all specific concerns about felony charges with your attorney.

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 nor does it create an attorney client relationship. For specific legal advice, you should consult an attorney.

www.thecollincountylawyer.com

An Occupational License Can Allow You To Drive While Your License is Suspended for a DWI

In Texas, an occupational license is a temporary permit allowing people to drive while their license has been suspended due to a breath test refusal or breath test failure in a DWI situation.

The statutes governing driver's license suspenses and occupational licenses due to intoxication an even marijuana offenses read like complicated flow charts and matrices... but here are some generalities and reference points:

Occupational licenses are governed by Chapter 521 of the Texas Transportation Code, Subchapter L. Breath test suspensions are governed by Chapters 524 and 724 of the Texas Transportation Code.

An occupational license is attained through a civil petition (basically a civil lawsuit) which a judge must approve. The Judge can allow someone to drive for 4 hours a day (but can extend that to 12 hours a day upon showing of "essential need.") The court order, by law, must contain the times and routes of travel. Judges can also order other provisions such as interlock devices be placed on cars during the occupational period.

For those with irregular travel due to work (for things such as sales routes), Judges can order log-books be kept in the vehicle. Also, for the issuance of an occupational license, the State requires you attain what is known as SR-22 insurance.

Tex.Trans.C. 521.241 defines "essential need" as:

"(A) in the performance of an occupation or trade or for transportation to and from the place at which the person practices the person's occupation or trade; (B) for transportation to and from an educational facility in which the person is enrolled; or (C) in the performance of essential household duties."

Chapter 522 of the Texas Transportation Code covers commercial vehicles. No occupational licenses can be granted for commercial vehicles. Tex.Transp.C. 521.242(f).

Occupational questions and qualifications can be very complex and consulting an attorney can save you much time and effort.

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 specific legal advice in your situation, you should consult an attorney.

www.thecollincountylawyer.com

What is the Punishment for a First DWI Offense in Texas?

All the hype and rhetoric over DWI enforcement in Texas causes people who get arrested to have the expectation of a very harsh punishment -- like a felony conviction, having their arm lopped off, or a bright orange DD tattooed on their forehead.

DWI punishment isn't a walk in the park, but it's not quite that bad.

A first offense is a class b misdemeanor -- which is in the middle of the misdemeanor range. It's punishable by a minimum confinement of 72 hours jail and/or a $2,000 fine. While no lawyer can guarantee you any particular result, statistically the vast majority of convictions on first DWI arrests result in probation. This means that any jail time assessed may be put off while you complete community service and various other tasks such as a victim impact panel. There is no deferred adjudication for DWI cases in Texas on any level.

Also if you're convicted of DWI in Texas for a first offense -- you will be assessed a surcharge for three years to retain your driver's license of $1,000.00. If you have a breath test result of above a 0.15, then the surcharge is bumped to $1,500 per year.

What I've been describing so far are the criminal aspects of a DWI. The driver's license suspension for a breath test refusal is a separate, civil matter, but is usually handled in conjunction with your DWI defense.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy 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 directly.

The Difference Between DUI and DWI in Texas

Every state has laws preventing drunk driving. Some call their laws DWI (driving while intoxicated) and some call it DUI (driving under the influence). Texas actually has both, but there is a big difference between the two.

Only a minor can commit a DUI in Texas. A DUI is where a person under 21-years of age has consumed any detectible amount of alcohol and is operating a motor vehicle. A DWI can be committed by anyone (including minors) who do not have the normal use of their mental or physical faculties due to the introduction of drugs, dangerous drugs, or other substances into the body and are operating a motor vehicle.

A DUI is a Class c misdemeanor meaning it is the lowest level offense and it's typically handed by a justice of the peace or at the municipal level. The maximum fine is $500 and there is a big push in those cases towards rehabilitation, community service, and alcohol eduction. The burden is clearly lower for those cases as the state only needs to show the driver consumed, "a detectible amount of alcohol." Both offenses carry possible drivers license suspensions.

A DWI is a class b misdemeanor punishable between 72 hours and 180 days jail and/or a fine not to exceed $2,000. Generally speaking, a DWI is what people are referring to in Texas when they talk about drunk driving laws.

Jeremy F. Rosenthal

(972) 562-7549

*Jeremy 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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Police Interviews -- Questions and Answers

Police officers investigate crimes and build criminal cases. Police use the legal elements of a crime as a check list to determine whether they can make an arrest or not. Police officers are not judges. It is not their job to determine who is right and who is wrong and shake the hand of the winner.

When being faced with a police interview, consulting a lawyer is never a bad idea.

Miranda rights will typically not apply to voluntary visits to the police station. While only the police really know the true reason they ask a particular person to come in, it may be because they lack only a technical check-list item to complete their case. The police may be looking for a minor detail which the suspect assumes is common knowledge, or the police may not have a clue and the suspect confession can be their early Christmas present. Prison is full of people that should have used their right to remain silent!

But I've Got Nothing to Hide

Police reports often read like "Soviet History," meaning you tell the police, "I went to the house for the party for a few minutes and didn't recognize anyone, so I left." The police report will read, "suspect admitted entering the house." Got the idea? If an officer has his mind made up before you even begin the interview, probably nothing you do or say will change his mind. I'm not saying that people can't persuade police they've done nothing wrong and avoid a huge criminal headache... I'm just saying that is a big gamble.

I Don't Want to Make the Police Mad

Often times, the only conceivable way they can solve a crime is through your confession or admission. Police are used to people "lawyering up." Getting a lawyer may make the police upset -- but they'll get over it. Do the officer's feelings really matter when your future is at stake?

But They Said it's Just for Routine Questioning

Deception is a legitimate tool for law enforcement. Many police can be highly manipulative in taking a softer, more friendly approach to an interview suspect. In Dallas and Collin Counties, jurors will applaud police who can craftily get confessions after trial and the Defendant is on their way to prison.

This article isn't intended to apply to situations where you may get what is known as a 'target letter' of a federal investigation. In those situations, you should consult a lawyer immediately as well.

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.

www.thecollincountylawyer.com

Why a Theft Charge is Bad News

Theft is regarded in Texas as a "crime of moral turpitude." Offenses like DWI or drug possession, for example, are not crimes of moral turpitude under Texas law. Crimes of moral turpitude have far-reaching collateral consequences that can almost be incalculable ranging from denial of professional licensing, to federal immigration consequences, to being impeached in future legal proceedings.

There is no one comprehensive list of crimes of moral turpitude and there is no universally agreed upon definition, but theft has been held to be one and is squarely within what courts have defined to be crimes of moral turpitude in the past. Milligan v. State, 554 S.W.2d 192 (Tex.Crim.App. 1977).

What this means is that EVERY theft case is a big deal regardless of whether it's shoplifting a pack of gum or multimillion dollar embezzlement. When dealing with any type of theft or shoplifting charge, it is always critical to consult an attorney who can attack your legal problem with the long range vision of keeping your future goals in-tact.

Even taking deferred adjudication on theft or shoplifting cases can have collateral consequences that are unforeseen. For instance the federal government or other states may not necessarily accept your texas deferred adjudication on theft and they could conceivably treat deferred as a conviction. Also, many civil administrative and occupational Texas statutes may come into play with regards to your job and profession -- and those statutes are subject to change years after your case was completed.

Unfortunately, many people who took a quick and easy deal when they were younger to either save money on hiring a lawyer or because they didn't think it was a big deal -- find out years later when they lose an important opportunity. For a theft or shoplifting case, regardless of how small, you should get a lawyer!

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.

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Dallas Police Want to Do Blood Warrants for All DWI Arrests

The Dallas Morning News published an article yesterday stating that the Dallas Police Department would like to take a blood sample with every DWI arrest. To accomplish this, they would need to take every case before a magistrate to determine whether there is probable cause to issue a search warrant and allow the police to draw the blood.

You can read the article here.

There are many concerns about this approach above and beyond what the City thinks the drawbacks to be (i.e. money). The bottom line is that they presume everyone arrested is guilty. You can only rationalize their thought process by skipping whole-heartedly over the presumption of innocence:

(1) It's okay to cause bodily injury as defined in the Texas Penal Code by sticking a needle in someone's arm to solve a misdemeanor offense;

(2) Stating that it will equal more guilty pleas and more convictions (again, only true if everyone you arrest is guilty); and

(3) turning our independent judiciary into de facto law enforcement by having them rubber-stamp every arrest for a search warrant.

Dallas police may be very careful about what they wish for. Based on the article, it sounds like whether someone is taken for a blood test is a somewhat arbitrary decision by the officer right now. Are the officers only taking the people they are positive will fail a blood test? It wouldn't be surprising to see a blanket policy result in far more tests results below or near 0.08 which could mean more trials. And to speak DPD's language, more taxpayer waste.

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.

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Petition for Non-Disclosure

A Petition for Non-Disclosure is an intermediate tool used to clean someone's record. It is not as sweeping or as beneficial as an expunction, but it can lessen the blunt force of a conviction.

The Non-Disclosure statute is very complicated and is loaded with qualifications and exceptions. What it means, in general, is that your criminal record stays intact (unlike an expunction where an arrest record is destroyed), but the state is limited in it's ability to disseminate the information of your record to the general public. As you can see by reading the statute, there are numerous agencies which are exempted from honoring the non-disclosure (such as professional licensing bodies), and there are tons of offense which don't qualify for non-disclosures (such as sexual assault, stalking, and family violence affirmative findings).

Here is how it generally works: If you plead guilty and are placed on deferred adjudication, you may be eligible to file a petition for non-disclosure two years after the date of your Tex.Code.Crim.P. 42.12(5)(c) dismissal on misdemeanor cases and five years after the dismissal of your felony. Your petition is discretionary meaning the prosecution can fight it and you must prove to the judge that granting it is in the best interests of justice.

The benefit of a petition for non-disclosure is that your criminal record shouldn't be readily available to private companies that do general background searches. The downfall is that they can be challenging to get and even though the information s difficult to attain, it hasn't been destroyed as with expunctions.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

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*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 always consult an attorney.

Deferred Adjudication

Deferred adjudication in Texas is where a person charged with an offense pleads guilty or no contest and rather than being found guilty, the judge defers a finding of guilty while the accused is placed on what amounts to probation.

If the person successfully completes deferred, they are never "convicted" of the offense. Most people are familiar with deferred because of a traffic offense or another class c misdemeanor. Most class c deferred adjudications do make you eligible for expunction. You are not eligible for expunction for class b misdemeanors or above in Texas, meaning your criminal record will never be completely erased. You may be eligible for a petition for non-disclosure which is much different.

It is a dangerous, dangerous, assumption for anyone to make that if they plead guilty and accept deferred that the case merely vanishes or goes away. Here is an interesting web site about deferred adjudication. I'm not personally familiar with this group, but they seem to have some interesting information and statistics about deferred.

I'm not always convinced deferred is a terrible thing, but sometimes deferred can even be the devil's candy... meaning that it sounds very tempting but it only begins your nightmare.

If you violate deferred, then you're subject to punishment for the entire punishment range. What this means, is that even though you get deferred on a state jail felony (that has a maximum punishment of 2 years jail -- as an example), you may at first just have to report to a probation officer and do probation -- but if you violate your probation -- you can't go back and fight the underlying case AND you are still subject to doing up to the entire 2 years in jail.

The federal government may treat a Texas deferred as a conviction. Also, there are many Texas statutes and laws which simply don't give you any benefit above and beyond a conviction. Just as a small example, where a juvenile gets multiple dui deferred adjudications, they can later be enhanced as if they were convictions. There are plenty of other criminal statutes in Texas that tread deferred like a conviction.

If you're about to accept deferred adjudication in a Texas Court, you should make sure to specifically know exactly what it is that you're getting into by speaking with your attorney.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

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

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The Top 5 Reasons for Getting an Expunction

Assuming you are eligible for expunction from an arrest in Texas, here are the top 5 reasons to get one if you can.

#5 -- Peace of Mind

When I ask people about prior criminal records, I often get blank stares followed by an explanation that is very unsure of the final outcome. With an expunction, you get the certainty of knowing your status and how to deal with it in any given situation based on what you know is the law and your rights.

#4 -- Future Dealing With Law Enforcement

Prosecutors and police officers look at your life through a straw... meaning they don't care about how many old ladies you've helped cross the street in your life. If you got arrested 18 years ago and "beat the rap" then they make it their business to nail "career criminals" like you! Without an expunction, that arrest will be seen by law enforcement. To many of them that prior arrest is as good as a conviction.

#3 -- You Never Know When It Will Come Back and Bite You

People can dig into your personal history for all sorts of reasons. Though law enforcement's databases tend to be off limits, they sell your information to public information firms who in-turn sell that information to consumers. Also your court case is a public record and anyone can view it if they are motivated enough for any reason.

#2 -- Future Employment

Employers will run your criminal history. Even if you're acquitted or the case dismissed, the arrest is still in all the databases of law enforcement unless and until it is expunged. Having to make your case all over again to your employer about how the charges were incorrect is a losing battle. Do you think the other candidates interviewing have to explain warts like that? Not expunging an arrest can cause people jobs.

#1 -- Why Wouldn't you have an Arrest Expunged?

There aren't any good reasons not to get an expunction when you're eligible. The legislature has put mechanisms in place so if you apply for expunction quickly after acquittal (within 30 days), the expenses are minimized.

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 please consult an attorney.

Will Assault Charges be Dropped if the Victim Doesn't Want to Prosecute?

Possibly, but it mainly depends on the prosecutor.

A criminal assault or family violence charge in Texas is a proceeding between the State of Texas and the accused. The victim is mainly treated as a witness. The decision to prosecute is squarely on the prosecuting attorney.

This is typically a policy driven area with prosecutors. The Collin County District Attorney's office has a no dismissal policy.

Many criminal defense attorneys or prosecutors ask that alleged victims that wish to drop charges fill out an "affidavit of non-prosecution." That is a statement under oath which gives the alleged victims reasons for not wanting to prosecute. An affidavit of non-prosecution does not bind the prosecutor or the judge to dismiss the case.

If the alleged victim is considering filing an affidavit of non-prosecution, that statement is a statement under the penalty of perjury. If the alleged victim gives an inconsistent account in the affidavit as she did to the police -- she may be charged with giving a false statement to a police officer. It is crucial for the alleged victim to know that defendant's lawyer is not their lawyer. In fact, that lawyer has a direct conflict of interest in advising them. It is not imprudent, improper, or uncommon for the alleged victim to have their own attorney in these situations.

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, please consult an attorney.

www.thecollincountylawyer.com

A Small Domestic Violence Charge? No Such Thing!

Domestic or family violence charges in Texas range from class c misdemeanors (the same level as a minor traffic offense), to felonies in other circumstances. The fact that some are charged as class c's doesn't diminish their importance and can act as a trap door.

A class c assault occurs where there is unwelcome offensive or provocative contact. The state does not need to prove the victim suffered any pain or discomfort whatsoever. They appear deceptively insignificant because they can be charged in smaller municipal courts and before justices of the peace where the rules are less formal and far fewer people have lawyers.

In class c domestic violence cases, the prosecution may try and add a small enhancement paragraph to the charge known as "an affirmative finding of family violence" under Texas Code of Criminal Procedure 42.013 and Texas Family Code 71.004. If the court enters this finding, even where the defendant gets deferred adjudication, then that finding can be used to enhance a future misdemeanor assaults all the way to a felony.

Most domestic violence cases in Texas are charged as the class a misdemeanor assault -- where the state must prove some bodily injury (defined as any pain or discomfort). These cases can be very difficult for the state to prove. Often times the state will offer a class c deferred on the morning of trial if they feel badly about their case. Even in those instances, a person charged must be very careful because the affirmative finding may still be attached even though the charges reduced and getting deferred.

If you are charged with a class c assault where the alleged victim was a family member or someone in a dating relationship, you should strongly consider getting a lawyer regardless of how minor you think the situation to be.

Jeremy F. Rosenthal

(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, please contact an attorney.

www.thecollincountylawyer.com

Texas Legal Definition of Intoxication -- Not Having the "Normal Use"

Texas has two legal definitions of intoxication. The first is what we will discuss today -- not having the "normal use" of you mental or physical faculties. The second is having a blood alcohol concentration of 0.08 or greater.

Herein lies a classic struggle between prosecutor and defense attorney. The term "normal use" is usually defined by the judge only to be a "normal non intoxicated person." That's all the clarification a jury gets. It's as clear as mud.

What the prosecution will often attempt to do -- as early as jury selection -- is manipulate the definition of "normal" to make it as slight a burden as possible. The less drunk they have to prove the defendant is, the better their chance of winning at trial. I've had prosecutors suggest to the jury that having rose-colored cheeks after a glass of wine is a sign alcohol is affecting someone. Other examples I've seen from prosecutors is that someone who is chattier or quieter than usual because they've been drinking may be signs of "not having the normal use."

Obviously, examples as given above can be seen as excuses to convict practically anyone that has been drinking and is behind the wheel. That's not the law. A DWI trial lawyer will point out that the words "normal use" are very broad and mean what they mean. They shouldn't be manipulated by prosecutors trying to lessen the burden of proof. I've been on a airplane before where there was an engine malfunction yet the pilot announced to the passengers that the plane "was operating normally." The word normal is extremely subjective.

Fighting DWI's in Dallas and Collin Counties involves knowing how to spot and combat this trial tactic and many others prosecutors are taught.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

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

Even if You Pass The Breath Test, You Will Still Get a DWI Charge in Collin County

Texas Penal Code Section 49.01(2) defines intoxication as "(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more."

As you can see the legislature used the word "or" between subsection (A) and (B). This means that you can be charged with DWI where the officer believes you "do not have the normal use..." regardless of whether a breath test was taken -- and regardless of whether a breath test result was below 0.08.

Technical Supervisors, who are the state's "breath test experts" at trial have training on alcohol, it's effects on the body, and it's effects on driving. They testify, in general, that no one has the "normal use" above 0.08 for the purposes of operating a motor vehicle and some lack the "normal use" below 0.08.

The end analysis is simple -- if the officer says you've lost the "normal use," then you are getting arrested for DWI regardless if you blow a 0.11 or a 0.06.

As a former Collin County Prosecutor and as a Criminal Defense Lawyer in Dallas and Collin Counties, I have yet to see or hear of anyone that got taken back to the police station for DWI, was asked to take a breath test, and wasn't charged with DWI regardless of the result. Maybe it has happened. I've just never heard about it.

This is part of the lose-lose equation which is the breath test. And then the police actually wonder why people refuse the breath test all the time.

Tomorrow, I'll discuss the debate over "normal use" in DWI trials.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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 with an attorney.

www.thecollincountylawyer.com

You Don't Have to Prove You Are Innocent -- It's Probably Impossible Anyway!

In our system of justice -- you are under absolutely no burden whatsoever to prove you are innocent. The prosecution must prove you're guilty beyond all reasonable doubt. If they can't, then you're entitled to acquittal.

One of the most common misconceptions in criminal law is people's confusion about the difference between proving innocence and casting doubt. It's an understandable mistake because after all -- we're all programmed since birth to hear 'both sides of the story.'

When I had jury duty in Collin County they even showed us a video where an actor said, "we had to find the person innocent" which, to me, sounds like someone scratching a chalkboard... they really had to find the person was 'not guilty.' and there is a huge difference!

There is really no other fair way to have a criminal trial if you really think about it.

During jury selection, I'll often ask a panel member how they would prove to me that they didn't break a traffic law -- say speeding or running a red light -- on their way to court. Most say that they could swear to it. But then they draw a blank about how they would actually prove their innocence with hard evidence and not just their word. The truth is that they could never prove their innocence unless there was some sort of camera following them on their entire trip which is silly to even think about. In fact, the harder they tried to somehow unsuccessfully prove their innocence -- the guiltier they would look!

Think about all the people being let go after years and years of prison due to exoneration. Those are cases where there is DNA evidence -- and DNA evidence is not commonly used in DWI cases, theft cases, or drug possession cases. It's not always even available in murder or sexual assault cases!

If you've been charged in Dallas or Collin County you shouldn't worry about whether you can prove that you're innocent. I'll save you the time and trouble -- there is a great possibility that you can't - and you don't have to anyway. Focus on getting a criminal defense lawyer that can use the evidence available to cast doubt on the prosecution and state's conclusions.

Jeremy F. Rosenthal

(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 directly with an attorney.

www.thecollincountylawyer.com

Plano Writ Bonds

Often in Collin County (usually Plano), someone is told by the police or a jailer that they need a lawyer to file a "writ bond" to get a friend or loved one out of jail for a DWI arrest, theft arrest, or marijuana arrest.

A "writ bond" is a "writ of habeas corpus" filed with the County by a lawyer for their client (the person arrested) that will trigger a cash bond. Once the bond is set, it can be paid -- and the person arrested released.

In non-legalese, this means it is possible to get a loved one out of jail before they are taken to a magistrate to set bond -- a process which by law may take up to 24 hours from the time of arrest on a misdemeanor.

Collin County and Plano Writ bonds are only appropriate in a narrow set of instances. The offense charged must be a Class B or A Misdemeanor (meaning no traffic tickets or felonies). No assault or family violence charges either.

Legally what is happening is that the lawyer is filing what is known as a "writ of habeas corpus" (Latin for "you have the body") on behalf of his client -- the person arrested. It is a petition from relief for unlawful detention. Don't let the unlawful part throw you -- it just means the person is being held without bond. Collin County has a schedule of bonds which are set upon the filing of a writ by a lawyer on behalf of the client. Once the bond is set, it can be paid like a cash bond (meaning that the person in custody is both the principal and surety -- i.e. no bail bondsman is in the equation). Months down the road when the case is completed, the bond money gets refunded back to the inmate (not the friend or family member paying the cash bond), or if the person doesn't come to court -- the bond money may be forfeited.

This process shouldn't be confused with a bail bond. That is where a bondsman posts the bond with the county on the inmate's behalf. This gives the bondsman incentive to make sure the released person goes to Court because if they don't, they're liable to the county for the money pledged.

Some lawyers can also be bail bondsmen but most aren't. A lawyer doesn't have to be a bail bondsmen to file a writ of habeas corpus. I am not a bail bondsman but you should know the difference if you're visiting with a lawyer or a bondsman about any type of jail release.

Jeremy F. Rosenthal, Esq.

(972) 562-7549 (office)

(214) 724-7065 (Jail release number)

*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, please consult an attorney.

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If I Am Guilty, Then I Have to Plead Guilty, Right?

Wrong, wrong, wrong!

People say this to me all the time. I honestly admire them when they do. But here's the thing -- you have a right straight from our Constitution to plead not guilty and force the state to prove your guilty beyond all reasonable doubt. If they can't you are entitled to acquittal regardless of what you did or didn't do. People who have a problem with that also have a problem with Thomas Jefferson, John Adams, and our other founding fathers.

Here is the flaw in the "I have to plead guilty" attitude: Just because you're being remorseful doesn't mean the law and the prosecutor will be fair. The State of Texas doesn't have a phone line to the almighty so they can together decide what is and is not justice (regardless of the attitude of many of their prosecutors and policemen).

Take a DWI case for example. The person is taken to jail which is like a punch in their gut. They have an embarrassing scene on the roadside, and then they have friends or loved ones help them get out which is also humbling. For many, that experience alone may be punishment enough.

The state takes the position that you need to be branded with this forever and they've put a price tag on it designed to be as nasty a hardship on your wallet as they can possibly inflict. Not only that, some politician down in the polls 15 or 20 years from now may decide to re-punish you with additional red-tape to prove they are "tough on DWI" (and yes, there have been laws passed this last decade which affect the rights of those convicted in the past).

Also don't forget you don't have to prove your innocence at trial. Even if you are guilty, the state often can't prove it or they make a legal mistake entitling you to acquittal. That is their fault and not yours. Again, you've done nothing shameful or dishonest by pleading not guilty.

Merely because a prosecutor or policeman says pleading guilty equals justice doesn't make it so.

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 directly consult an attorney.

www.thecollincountylawyer.com

Am I Guilty Just Because I Was There?

In Texas, mere presence at a crime scene alone is insufficient to sustain a conviction. The difference between just being at a crime scene and doing something which can be considered aiding or abetting is paper thin, however. And if you're complicit in an offense -- you can be held equally responsible.

Texas has what is called the law of parties in criminal cases. It is governed by Section 7.02 of the Texas Penal Code. Tex.Pen.C. 7.02(2) says that if a person, "solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense..." then they are criminally liable as well. I've italicized the words above to show just how liberal the application of that law can be.

Let me give you a hypothetical of how this rule applies. Take two 18-year old boys at the mall. One decides he's going to shoplift and the other doesn't know about it. If the friend doesn't see and doesn't know that the other was trying to steal as they all walk out of the store -- it would be very difficult to say the non-stealing friend is guilty under the law of parties. Certainly the shop owner and police may think so; but they would have to prove that in court.

On the other hand, let's say the one guy is trying to shoplift and friend sees it. He doesn't participate, but he gets nervous and when the shop owner looks over at him, he "acts natural." Are both guilty of theft? It's a tough question. Some jurors may consider that aiding or attempting to aid in the furtherance of the offense.

Issues like these are why criminal defense lawyers experienced in trial are crucial. A criminal defense lawyer can force the prosecution to prove the complicit beyond all reasonable doubt. If the prosecution can't, then there will be an acquittal. The burden is on the state to prove your intent and your actions. The burden isn't on you to show you were innocent!

It should be noted that there are many offenses where people have an affirmative duty to report the crime that they've witnessed. This generally includes felony offenses and other cases where the witness owes a special duty to the victim. Also anytime a person suspects abuse or neglect of a child, they have a legal duty to report the same to Child Protective Services.

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, please consult an attorney.

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