DWI Surcharges Clog Texas Courts

The Dallas Morning News reports a former State District Judge from Waco, David Hodges, told the Texas Driver Responsibility Program in Austin that the surcharges assessed after DWI convictions were clogging the Courts. You can read the article here.

Mr Hodges is echoing the opinion of many criminal defense practitioners who believe the punishments for DWI related offenses have become so harsh that it makes more sense to fight DWI charges than to simply give in and plead guilty. Although the article also focuses on where the money for the DWI surcharges are spent by the state, it is important to note the surcharges that accompany a DWI conviction. They are:

(1) $1,000 per year for 3 years following a DWI conviction;

(2) $1,500 per year for 3 years following a 2nd DWI conviction; and

(3) $2,000 per year for 3 years following a DWI conviction where the blood/ alcohol concentration was 0.16 or greater.

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 specific legal advice about your own matters you should consult an attorney.

www.thecollincountylawyer.com

Confirmation Bias -- How Police Investigations Go Wrong

Confirmation bias is a psychological phenomenon whereby people have a tendency to selectively prefer information which confirms their pre-existing beliefs and hypotheses.

Why is this important in criminal law? Because every case involves investigation in one way or another. Police officers can and do fall into the confirmation bias trap. Classic signs of confirmation bias include ignoring evidence that contradicts the initial impression of the officer and interpreting neutral facts or exculpatory facts as evidence of guilt among others.

Psychologists have conducted studies on confirmation bias. In one study, test subjects were given fake police files which weakly incriminated a particular suspect. Later evidence showed that perhaps a second suspect was the culprit and that the original information was false. Not surprisingly, the subjects fell into several confirmation bias traps. They rejected evidence inconsistent with the innocence of the original suspect, they viewed neutral or ambiguous evidence as evidence of the original suspect's guilt, and finally the suspects ignored evidence pointing to the guilt of the second suspect in favor of evidence against the first suspect.

I see confirmation bias all the time from law enforcement during investigations. You can tell when it's going on in certain opinion-oriented cases such as DWI when you read an offense report which omits or wholly ignores evidence that contradicts the officer's findings. Often times police will take neutral facts (like where they describe a person as 'nervous' at a traffic stop) and attempt to spin that into evidence of guilt. Obviously that is non-sense as many people are nervous when confronted by authority figures like a police officer in uniform -- not just criminals.

Dealing with confirmation bias takes a skilled trial lawyer. Jurors must be educated during jury selection about confirmation bias and be show the practical example of confirmation bias in action when the officer holds firm to his opinion despite all the contrary evidence.

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 your own matter you should contact an attorney.

www.thecollincountylawyer.com

Public Intoxication — a Higher Degree of Intoxication than DWI

For the state to convict you of public intoxication, they must prove your level of intoxication is even higher than it would be for a DWI.

Here’s why: Texas Penal Code 49.01(2) defines intoxicated (in relevant part) as, “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…”

The above definition of 49.01(2) is the definition used for Driving While Intoxicated in 49.04.

Here’s the difference, though — Public intoxication is governed by 49.02 and that code specifically says, “a person commits an offense if the person appears in a pubic place while intoxicated to the degree that the person may endanger the person or another.”

In other words, not only does the person have to be intoxicated (defined by 49.01(2)), but they ALSO must be so to the degree they may “endanger the person or another.”

A simple way of putting it is that to be convicted of DWI, a person must have consumed alcohol to the extent they are dangerous behind the wheel of the car — to get a PI, they must be dangerous merely by being in public. Obviously it makes sense that there is a stricter standard for operating a motor vehicle.

Public Intoxication cases (or PI’s) are class c misdemeanors — meaning they’re lower offenses than DWI. PI arrests are highly subjective and frankly often done for crowd control reasons or even in cases where the passenger in a car is highly intoxicated (and the driver is getting hooked-up for DWI). Many officers know that their arrests may very well not end up in convictions, but they feel they are necessary anyway and are supported by the lower burdens of probable cause.

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 directly consult an attorney.

www.thecollincountylawyer.com

You Can Still Win a Breath Test Case with a Blood/ Alcohol Concentration over 0.08

You can be acquitted of DWI even if your breath and/or blood score is above a 0.08 and this is why:

Texas Penal Code 49.04 defines Driving While Intoxicated in the following manner, "A person commits an offense if the person is intoxicated whileoperating a motor vehicle in a public place." (Emphasis mine)

Texas Penal Code 49.02 (A) and (B) legally define intoxicated as, "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 having an alcohol concentration of 0.08 or more.

As you can see, your blood alcohol concentration must be at 0.08 or morewhile you are operating a motor vehicle... not an hour or two hours after you operated a motor vehicle for the State to convict you based on that definition.

This brings us to the concept of "retrograde extrapolation." While that sounds like a NASA term, retrograde extrapolation is the science behind trying to determine what someone's blood alcohol concentration was several hours in the past.

Several things factor into retrograde extrapolation. A person with the proper scientific background (usually the State's breath test expert) can calculate what someone's approximate blood alcohol concentration was at the time of driving based on factors such as height, weight, gender, type of alcoholic beverage consumed, and type or quantity of meal and time of the last drink.

It is not uncommon for the witness (typically the State's breath test expert) to estimate that a person's blood alcohol concentration was below 0.08 at the time of driving (or that the person's BAC was actually higher while driving than it was at the time of testing) based on the retrograde extrapolation facts. Jurors, then, may have a reasonable doubt as to whether the driver had a BAC of 0.08 or more while driving even though their breath test scores are above 0.08.

As a point of caution -- retrograde extrapolation is based on scientific principals and Courts have limitations on what jurors will be allowed to considered as scientific testimony. Only cases where the BAC score is reasonably close to 0.08 may cause the BAC to extrapolate low enough to make a difference. For instance, it doesn't help your case if the State's expert witness says "instead of a 0.14, the subject was possibly at 0.13 at the time of driving."

Police routinely question people (usually after the breath test) about what they had eaten, when they last ate, when they last drank, etc. These questions are for the purposes of later retrograde extrapolation. These questions are testimonial in nature and you have the right to refuse to answer them -- which is typically the safer course.

Finally, a jury can simply have a reasonable doubt as to the validity of the breath test score -- regardless of what it is. If the jury has a reasonable doubt that the person on trial is intoxicated (on all the legal definitions of 49.02) -- the verdict would be not guilty just the same.

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 you should consult an attorney.

www.thecollincountylawyer.com

Female Shoplifting and Depression – A Link?

I'm not a psychiatrist or a psychologist. My law license says "Counselor" and I joke that I'm not exactly sure why.

Regardless of the disclaimers, it seems to me that there may be a link between depression and theft when it comes to women. Just in surfing the internet, there is article after article about the links between the two from medical professionals and non-professionals alike. Even Winona Ryder, famed shoplifter from 2001, suffered from depression and anxiety disorders.

Putting on our lawyer's hat, the question isn't necessarily the same question that medical professionals may ask themselves. The legal question is two-fold. First, how does this apparent phenomenon translate into legal reality -- and second, what are appropriate treatments assuming conventional criminal justice punishment misses the mark?

Texas Penal Code 8.01 is the insanity defense. That statute states,

"(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

"(b) The term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

As you can see, the statute expressly prohibits diagnoses such as kleptomania or other "abnormality manifested only by... antisocial conduct." This language may tend to have courts highly scrutinize an insanity defense in a shoplifting or theft case. Indeed, Texas case law is somewhat scant in these cases as well providing little useful guidance.

Not only do courts highly scrutinize the insanity defense for theft cases, but many jurors have an extremely difficult time acquitting or excusing someone who is factually guilty of any criminal offense.

Based on the legislature, courts, and jurors view of the insanity defense, an insanity defense could be an extremely difficult defense to raise in a theft or shoplifting situation.

As far as treatment is concerned, most courts in Texas send persons that have either plead guilty to theft to "anti-theft classes" for probation. Also, not being a medical professional, my guess is that therapy, counseling, and/or medical treatment for the underlying depression and discussion of the triggers for the theft actions can never be a bad idea. The problem is that the counseling and treatment may come along with a painful criminal record.

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, you should always consult an attorney.

www.thecollincountylawyer.com

The Difference Between Writing a Hot Check and Committing Theft

Theft by check is governed by Texas Penal Code 31.03(e). Issuance of a bad check ("IBC"), is controlled by section 32.41. The differences are simple, but major -- one charge is like any other theft charge, and the other is simply writing a bad check. Most theft by check charges are class b misdemeanors or above ($20 to $500 are class b misdemeanors) while an IBC charge is a class c misdemeanor -- the lowest level of offense in Texas.

Theft is a crime of moral turpitude while IBC is not. Further, class b misdemeanors are more difficult to have expunged than class c misdemeanors.

Theft in Texas is simply defined when a person, "...unlawfully appropriates property with intent to deprive the owner of property." A Theft by check is merely a theft where the check was the instrumentality of the offense.

Issuance of a bad check is where a person, "issues or passes a check or similar sight order for the payment of money knowing that the issuer does not have sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order as well as all other checks or orders outstanding at the time of issuance."

The theft and IBC statutes have many different mechanisms for legal presumptions which may be used at trial to try and prove that the accused had knowledge of bad nature of the check which you can review if you are interested here.

Here's what you need to know if you're being charged -- know exactly which charge you are accused of! In Collin County, the District Attorney's office prosecutes many theft by check cases. Quite possibly many of these could also have been brought as a class c IBC. The State in these types of cases have very technical and difficult tasks of proving knowledge of the check being bad at the time it was issued -- and as a result these cases can be very winnable.

Never simply "pay the ticket" without knowing exactly what it is you are being accused of doing. This is a recipe for disaster when you discover 3, 4, or 10 years later that you really plead guilty to theft when all you did was bounce a check!

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 always consult an attorney.

www.thecollincountylawyer.com

DWI Arrest -- Bond Terms and Conditions

The vast majority of people arrested for misdemeanor DWI offenses are released on bond. They are free from jail but must appear for court settings during the pendency of the charges against them. While "on bond," the legislature has required that certain conditions be met. The main condition which affects some DWI arrests is the ordering of an interlock ignition device (or deep lung device) on the defendant's car. This means the device can be placed on someone's car before they've had a trial or had their first main court setting.

Texas Code of Criminal Procedure 17.441 holds that the judge shall, as a matter of law, order a deep lung device be placed on the vehicle of the defendant if the arrest in question was for a subsequent DWI, intoxication assault, or intoxication manslaughter. The judge may not order the interlock devices in those circumstances as well if they make a finding that ordering the device is not "in the best interest of justice."

Although, 17.441 is the only provision of the Code of Criminal Procedure which directly addresses deep lung devices, judges and magistrates have broad discretion to make "reasonable" conditions of bond for "community safety" under Tex.Code.Crim.P. 17.40. Some magistrates take this as carte blanche to slap deep lung devices on first DWI offenders in random situations.

If a magistrate has unreasonably placed an interlock device on the driver's car after a DWI arrest, that decision can often be amended or changed by the trial judge at a later point while the accused is on bond pending charges.

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.

www.thecollincountylawyer.com

Motions to Suppress

A Motion to Suppress is where a criminal defendant challenges the legality of a search, seizure, arrest and/or attainment of evidence they allege to have been obtained by law enforcement illegally. If the defendant wins their motion, the evidence is excluded at trial. Depending on the facts of any specific case, the suppression of evidence may mean the State's evidence at trial will be insufficient to sustain a conviction -- or it may only eliminate the jury considering damaging evidence during the trial.

Texas Code of Criminal Procedure 38.23 says in relevant part, "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."

This provision stems from the Fourth Amendment to the U.S. Constitution and it's prohibition against unreasonable search and seizures. Search and seizure law and determining what is or is not a valid or legal arrest, search and/or seizure is a highly complex and highly complicated area of the law.

In Texas, there is actually a legal presumption that if a search is warrant-less, that the search is invalid. The prosecution can over-come this burden with clear and convincing evidence that the search was valid during a hearing before the Judge.

Motions to suppress are common ways of defending criminal cases. Again, if evidence is attained illegally and it is excluded, the prosecution may lose it's only evidence as to certain elements of the case. Where this is the case, they lose as a matter of law. This isn't always the case, though, where the prosecution has other ways of proving a crime independent of the illegally attained evidence.

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 about your own situation you should contact an attorney.

www.thecollincountylawyer.com

A Prosecutor's Duty to Seek Justice

A prosecutor has a statutory duty to seek justice. Texas Code of Criminal Procedure Section 2.01 says in relevent part, "It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused."

This statute is a crucial safeguard in the criminal justice system which should not be diminished nor ignored. This provision is highly subjective and can be very frustrating... as a defendant's remedy for the prosecutor's breach of this duty may not equal the great harm the prosecutor has inflicted.

The main frustration in the everyday practice of criminal defense law is that the gatekeeper of what is in "the best interest of justice" for any given situation is the prosecutor themselves. Most prosecutors take their duty very seriously. As with any given set of human beings, though, some approach it in a misguided manner and abuse their discretion whether they know it or not.

What is "in the best interest of justice" is highly subjective. Examples of judgment calls a prosecutor must make range from interpreting whether evidence is favorable to the excused or is exculpatory (tending to prove innocence) and thus making the evidence mandatory to disclose. Other examples include whether to reduce charges in certain situations. Again, much difficulty comes from the fact that the prosecutor is engaging in an adversarial process where they, unlike the judge or jury, are not required to presume the accused as innocent. Therefore, some prosecutors, if they don't think innocent people ever get accused, can view their duty to seek justice far more narrowly than everyone else.

Unfortunately there isn't much of a remedy for many prosecutorial decisions, but some misconduct can result in sanctions, new trials, and even acquittals from the Courts.

Brady violations, generally referring to a failure to disclose exculpatory evidence for guilt or favorable evidence for punishment, are the main area for prosecutorial discipline. Some Brady offenses are worse than others, but in extreme cases, Courts have actually acquitted accused people due to those violations.

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

www.thecollincountylawyer.com

When You can Get Deferred Adjudication in Texas and When You Can't

Deferred adjudication is available on many crimes in Texas. Most people are familiar with deferred for traffic tickets but the truth is the concept is far more expansive.

Virtually every offense in Texas is legally subject to deferred with the exception to DWI offenses, (Tex.Pen.C. 49.04 - 49.08), capital offenses, certain sex offenses, and certain repeat offenses (typically sex offenses or selling drugs in drug free zones). Texas Code of Criminal Procedure section 42.12 Section 5 governs deferred and it's availability.

The main reason why deferred is denied on cases where the code otherwise says you're eligible is due to certain policies of local prosecuting attorneys. In order to get deferred in the first place, you must plead guilty -- and to plead guilty you usually have a deal in place with the prosecutor. If the prosecutor won't agree to deferred, or won't agree to what is known as an 'open plea,' then deferred is not an option.

Collin County, for example, has an office policy that no person with a previous criminal record (other than minor traffic offenses) is eligible for deferred on any case. Additionally, they have policies against deferred on instances of employee theft, for example. Even though the code says deferred is okay in these situations, the state (that in many ways is the gate-keeper of deferred) may not agree. Then again, they have a duty to act in the best interest of justice, so they're ears aren't always closed.

As with which cases a person may receive community supervision, in certain situations for deferred, the statutory scheme gets tricky and you should consult an attorney if you have any questions.

I have discussed in previous blawgs the other pros and cons of deferred here, and here. Never assume that by pleading guilty (or nolo contendere) and getting deferred that your criminal record will be unharmed or will undo itself.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article should be considered leal advice. For legal advise specific to your situation you should directly consult an attorney.

www.thecollincountylawyer.com

Probation Eligibility in Texas

All Class B misdemeanors and above in Texas carry possible jail sentences. Even where people are convicted or plead guilty, however, probation is often an option. No attorney can guarantee you a certain result with getting on probation (or community supervision as it's known). Calculating probation eligibility can be complicated to figure out.

For a quick reference, probation eligibility and deferred adjudication eligibility are governed by Tex.Code.Crim.P. 42.12.

A judge can place any person on community supervision (probation) for a misdemeanor offense regardless of criminal history. This includes DWI (1st and 2nd), theft below $1,500, possession of marijuana (under 4 oz.), and assault causing bodily injury. This can be done during a guilty plea or at trial -- by selecting the judge over the jury for punishment. For a jury to give community supervision during a trial, for a misdemeanor or a felony, the defendant must file prior to the trial, a sworn application stating they have not been convicted of a felony offense in Texas or any other state.

Felony offenses where a judge cannot give probation include (but aren't limited to): capital murder, murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, aggravated robbery, first-degree injury to a child or elderly person and certain drug offenses in drug-free school zones where there has been a prior similar record. Upon conviction juries also cannot make a binding recommendation for probation on some, but not all, of these offenses. This means on some offenses, a jury can give you probation where the judge cannot.

Whether or not people are eligible for deferred adjudication for some of these offenses is a different matter. Deferred adjudication is a different form of community supervision. To get deferred on anything, the defendant must plead guilty. This article is mainly geared at persons that have a trial on the merits.

Judges can order jail time as a "term and condition" of community supervision (typically called T & C time) which means that the individual must complete the a jail sentence to be allowed to proceed on community supervision. Those times are not to exceed 30 days in a misdemeanor or 180 days in a felony.

It is extremely important to note that in felony offenses, eligibility for probation and/or deferred can be very complex and complicated. It is always best to consult an attorney about specific circumstances.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

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

www.thecollincountylawyer.com

Theft Classifications

Criminal charges for theft in Texas depend on the amount or value alleged to have been stolen. Regardless of how small a theft charge may be, however, the stigma attached with a theft charge is extremely damaging.

Below $50; Class C misdemeanor (Fine not to exceed $500).

Between $50 and $500; Class B misdemeanor (up to 180 days county jail and/or $2,000 fine). Theft by check is a Class B misdemeanor where the check was above $20 even though the amount would normally qualify for a Class C.

$500 to $1,500; Class A misdemeanor (up to 1 year county jail and/or $4,000 fine).

$1,500 to $20,000; State Jail Felony (between 180 days and 2 years State jail and fine up to $10,000).

$20,000 to $100,000; Third Degree Felony (between 2 and 10 years TDC and fine not to exceed $10,000).

$100,000 to $200,000; Second Degree felony (between 2 and 20 years TDC and fine not to exceed $10,000).

$200,000 and above; First Degree felony (between 5 and 99 years TDC and fine up to $10,000).

Theft crimes are also subject to enhancements. For example, two final theft convictions in any amount can make a third theft conviction in any amount a State Jail Felony. This means a petty theft of a pack of chewing gum could conceivably be a felony with two prior theft convictions in the past.

Regardless of the amount -- there is no such thing as a small theft charge.

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 you should consult an attorney.

www.thecollincountylawyer.com

Punting Your Rights Away: Agreeing to a Warrant-less Search

Nothing good can happen from a voluntary search. At best, nothing bad will happen. Who would ever make a business decision, take a gamble, or play a game with those odds?

In Texas, if you give consent search, your lawyer will have an extremely difficult (if not impossible) time having any evidence of an offense suppressed.

Most people don't know that police can't just dig through your car or house just because they want to. Police must play within the rules and can only search without a warrant or consent during a hand-full of situations. In fact, Texas law actually presumes that a warrant-less search is actually invalid. Where you agree to allow the officer to search, however, you've punted your rights away.

Police won't tell you this, but you've got the right under the Fourth Amendment to the U.S. Constitution and Article 9, Section 1 of the Texas Constitution to be free from unreasonable search and seizure. You can refuse many searches. There are some situations where the police don't need your consent -- such as search warrants. In those situations, your remedy is to fight the search in court later.

Refusing to allow an officer to search during a traffic stop, for example, is easier said than done. First of all, the vast majority of the time the officer knows (1) what he or she is after; (2) the law with search and seizure; (3) the magic words they need to get you to say to waive your rights; and (4) most people they encounter on the road are subservient to authority and will have a hard time saying no if pressed.

Many people think that if they refuse the search, the officer may become agitated and retaliate somehow by writing more tickets, calling other police to the scene, or trying to search anyway. Some, all, or none of these things may happen -- but what will absolutely happen is that you will waive your valuable rights which will be painfully obvious during later court proceedings. If we were to stack all the 4th Amendment cases, the pages would go all the way to the moon. Courts have dealt with virtually any scenario you can think of... and the police really do have tons of limitations you may not know about.

Here's a video from the ACLU that talks about police encounters. It's a bit odd and goofy, but is very informational and captures the general tone of some police encounters. It's obviously not a "how to get away with breaking the law" video, but is intended (as with this blog) to be generally informative of legal rights.

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 and is intended to be general information. For specific legal advice you should consult an attorney.

Texas Grand Jury FAQ's

What is a Grand Jury:

A Grand Jury is a panel that decides whether a felony should be indicted or not. The DA's office can file misdemeanors on their own, however, to file felony charges a grand jury must agree there is probable cause.

Grand jury meetings are secretive and confidential. The public has no access to their deliberations. Typically they deliberate matters brought before them by the District Attorneys office. Here is a link to some technical and historical information about Texas grand juries.

Grand Jury Findings

Grand juries can do several things with cases they hear. They can issue a true bill which equals a felony indictment or they can issue a no-bill turning the case down. Occasionally they will charge a person with a misdemeanor instead of a felony through indictment. After a true bill is issued, the case gets assigned to a court and proceeds normally.

Criminal Defendant's Rights During Grand Jury Proceedings

If you really think about it... having a grand jury as a hurdle for the prosecution in and of itself is the only real right you have in this process (in theory anyway).

A criminal defendant does not have the right to testify at the grand jury nor does your attorney have the right to be present. Because the proceedings are secretive the transcript, if any, is not available. You can't even watch.

What Can I Do If I'm Under Grand Jury Investigation of if I Get a Grand Jury Letter?

Call an attorney. The prosecutors have discretion to allow your attorney to submit a packet of information to a grand jury to attempt to dissuade them from indictment. Also the prosecutor can agree to allow you to testify before the grand jury -- but not in the presence of your attorney. On many cases, prosecutors have incentive to negotiate with you prior to your case going to grand jury. As a policy, Collin County DA's office will not negotiate with people at the grand jury phase that are unrepresented by counsel. This may seem like a frustrating policy -- but frankly it's for your own protection. Grand jury situations are very complicated and the ramifications are very serious if mismanaged.

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 you should consult an attorney.

www.thecollincountylawyer.com