White Collar Crime

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

"White Collar Crime" refers generally to corporate crimes including but not limited to fraud, bribery, insider trading, embezzlement, computer crimes, money laundering, identity theft and forgery. White collar allegations can be particularly detail oriented both with the facts and with the law.

Unlike every-day "street" crimes, "white collar crimes" can be very document-intensive and require experienced counsel that is experienced in document review and analysis. Prosecutors may take a 1,200 page stack of documents and breeze over them to make sure it fits their theory of the case -- but a white collar criminal defense lawyer doesn't have that luxury. A white collar crimes lawyer has to understand that the key evidence that can lead to acquittal can be buried on page 1,034 in the third paragraph from the bottom.

Additionally, the prosecution in white collar cases can fall into many traps. Charging crimes such as embezzlement and misappropriation of fiduciary property is tricky -- and some prosecutors, for example, lazily try to prosecute these cases like it was shoplifting from a big-box store. An experienced white collar defense lawyer can expose and utilize such prosecutorial errors.

If you're accused of a white-collar crime you should involve counsel immediately.

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

Can the Victim Drop Assault Charges?

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

In a criminal case in Texas -- not directly. In a civil case -- yes.

Assault charges can be brought two different ways in Texas -- in a criminal court or (far less commonly) in a civil lawsuit. A civil lawsuit can be brought by the alleged victim to recover money while a criminal charge is brought by the State seeking a criminal conviction on the accused's record. Civil cases can always be dropped by the person bringing the suit.

In a criminal action, the parties are the State of Texas and the accused. The victim is not directly a party to the action and is really more accurately characterized as a witness. An alleged victim can request that charges be dropped, but the prosecuting attorney does not have to honor that request.

Many prosecutors will ask an alleged victim for what is known as an "affidavit of non-prosecution" or an ANP for short if they don't want to prosecute. An ANP is a statement under oath which details the reasons for their not wanting to prosecute.

An alleged victim has potential legal exposure for making a false police report in the event they admit statements on their ANP that are inconsistent with what they originally told police. For this reason, an alleged victim should seek counsel as well prior to doing an affidavit of non-prosecution (not the same lawyer defending the assault case -- that would be a conflict of interest for the lawyer).

The Bottom Line

Assault cases -- especially ones involving alleged family violence or spousal abuse -- aren't necessarily dismissed in Texas courts merely because the victim wants the case to be dismissed. The matters are complicated and the alleged victim should seek a lawyer in addition to the accused having a lawyer where the alleged victim is seeking to ask for charges to be dropped.

*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 any specific situation, you should consult an attorney directly.

Physician - Patient Privilege in Criminal Cases

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Texas Rule of Evidence 509 governs the physician- patient privilege. As with all privileges, it acts to protect communications that are confidential between a physician and a patient "relative or in connection with any professional services rendered by a physician to the patient."

Tex.R.Evid. 509(b), however, practically negates the physician- patient relationship in criminal cases. That section bluntly says, "There is no physician-patient privilege in criminal proceedings."

The only small exception under 509(b) is that communications to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for drug or alcohol abuse is not admissible in a criminal proceeding. This is obviously to encourage people who need help for substance abuse to voluntarily get help without recourse.

Police and/or prosecuting agencies can and do regularly subpoena medical records in criminal cases. Examples are blood samples taken during medical treatment after a car crash where alcohol or substance abuse is suspected. Other examples include statements made by pharmacy personnel in the reporting or allegation of prescription fraud.

Federal law which protects patients privacy under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") has a recognized exception in Texas for law enforcement purposes when they are issued a grand jury subpoena. This means that you can't rely on HIPAA laws to protect your privacy with doctors depending on how the police or prosecuting agency try to attain medical records.

The bottom line -- communications between patient and doctor are not legally protected in criminal proceedings. The privileges largely apply in civil cases, but not criminal.

*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 for any specific situation you should consult an attorney directly.

Getting Criminal Charges Dismissed

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Criminal cases can be like snowballs -- as they head downhill they can get harder to stop and they pick up momentum. An experienced and skilled criminal defense lawyer knows when, how and why police or prosecutions will want to dismiss criminal cases.

The Top of the Mountain

Using our snowball analogy, the beginning of the criminal case (or the top of the mountain) is generally where the police get involved. Frequently, that may be a traffic stop in the case of a DWI or drug seizure, or that can be where someone makes a report to police and police detectives get involved investigating an assault (as an example).

Will the police drop the case? Perhaps. It obviously depends on the type of offense and other factors weigh in such as the attitude of alleged victims and/or public pressure. On DWI's, for example, the police are under a great deal of pressure to pursue those types of cases. Police agencies are reviewed regularly by MADD and other Police agencies actually apply for grants for the express purpose of prosecuting DWIs. Those groups don't like hearing that the police are dismissing charges on DWI arrests. You can expect many agencies to have policies in place that don't allow them to not-persue charges after a DWI arrest.

On other cases that the police investigate, it may be possible to either convince the police that the case isn't worth pursuing. Always have a lawyer when negotiating directly with law enforcement agencies! Certain rules such as the attorney-client privilege and other rules of evidence protect you when your lawyer is dealing directly with law enforcement -- not to mention an experienced criminal defense lawyer knows how to deal with police better than you.

Some police agencies will resist filing criminal cases on people who assist them in further investigations. The most classic example is with narcotics and drug enforcement. Again, having an attorney assist you in these types of negotiations can help assure that you are protected.

Down the Hill

Eventually, the case will make it's way to the District Attorney's office. Once it gets there the "snowball" can be harder to stop. Prosecutors have an affirmative duty under the Penal Code not to seek convictions -- but to see that justice is done. So they can and do dismiss cases or sometimes they'll reject cases even though the police may want to prosecute.

Prosecutors control the Grand Jury process in felony prosecutions and often they will allow the defense to submit information (called a Grand Jury Packet) to the Grand Jury attempting to persuade them not to issue a true bill of indictment. While the prosecutor doesn't have direct control over the Grand Jury -- if the Grand Jury issues a "no-bill" or won't indict a person for a felony -- it can basically have the same effect as a dismissal.

After the Case is Charged by Indictment or Information

Once the State files an Information (in Misdemeanors such as possession of marijuana or Driving While Intoxicated), or they attain an indictment in a felony, then getting a prosecutor to dismiss becomes even more difficult -- but again -- not impossible.

Many prosecutors in Texas can be very resistant to dismissals and often times will try weaker cases they think they should lose rather than appear weak on crime. Again, the unique facts of every case govern the State's willingness to dismiss charges short of a trial. Some charges, like DWI and Assault/ Family Violence cases are dictated by policy in Collin County -- and the Assistants District Attorneys need special permission from their superiors for dismissals.

Often a dismissal at this juncture is a result of an attorney that hustles to build a case as to why the prosecution needs to dismiss the case in the best interests of justice and/or because he convinces the prosecutors they will not only lose the case -- but lose face before the citizens.

*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 about any situation you should consult an attorney directly.

Getting Letters Threatening to Sue You for Shoplifting?

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Retailers have made it a habit of sending letters threatening lawsuits under the Texas Theft Liability Act to people that were arrested in their store for the suspicion of shoplifting. It is important to first understand that any civil action or demand is completely and wholly separate from your criminal case. Their letter is no different than a private party trying to settle a lawsuit out of court.

People often have the mistaken idea that giving in and paying the money has a bearing on the criminal prosecution one way or another. There is no connection between the cases... in fact, if the letter were to threaten criminal prosecution of any sort in exchange for a civil settlement -- then the retailer could be prosecuted themselves for extortion!

The Texas Theft Liability Act is a civil statute which may allow for the companies to sue someone in civil court for money losses (Tex.Civ.Prac.&Rem.C. Chapter 134). Section 134.003 says, "a person who commits theft is liable for the damages resulting from the theft." Section 134.005(a)(1) holds that the damages they could win in court are, "the amount of actual damages found by the trier of fact and, in addition to actual damages awarded by the trier of fact in a sum not to exceed $1,000."

The problem the retailers usually have with being successful in this claim is that in shoplifting cases -- the items alleged to have stolen are virtually always recovered. Therefore, a retailer cannot honestly say they've suffered any damages "resulting from the theft." Some will argue that the fact they have to hire loss prevention personnel are damages... but they're not damages that resulted from THE theft in question.

Finally, Section 134.005(b) states, "Each person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary attorney fees." This can be interpreted to be a "loser pays" provision. Meaning the store comes to court and loses -- they pay for your lawyer.

If you've been arrested for shoplifting and you get a letter from a retailer -- at the very least talk with a lawyer about your rights and whether it's a good idea to pay their demand.

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

Possession of Cocaine

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972)562-7549

www.thecollincountylawyer.com

Possession of Cocaine in any amount is a felony offense in Texas. Texas Health & Safety Code Sections 481.115 and 481.102 are the governing statutes. Section 481.102 places Cocaine in Penalty Group 1 of the Texas Controlled Substances Act, and Section 481.115 is the statute which makes it's possession illegal. That law says:

"(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.

"(b) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram.

"(c) An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.

"(d) An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams.

"(e) An offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.

"(f) An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Texas Penal Code Section 1.07(39) legally defines possession as actual care, custody, control or management. Further, it is an extremely common defense to challenge the legality of the search where the cocaine was procured.

There are other aggravating factors under Texas State law which can enhance charges such as possession in a drug free zone or possession with intent to distribute.

Finally, under Texas law, first-time drug offenses which are in the State Jail Felony category MUST be punished by probation where there has been a conviction as the legislature has made recent strides towards rehabilitation in the past few sessions.

*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 about any situation you should directly consult an attorney licensed in your state.

Dallas Police Announce "No Refusal" Labor Day Weekend, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Dallas has announced a "no refusal weekend" for Labor day weekend, 2010. You can read the details here.

These weekends are becoming more and more commonplace. Not that I feel the need to editorialize but there are plenty of things about this policy that ruffle my feathers legally speaking. And there is actually a positive aspect of a blanket policy from a DWI Defense lawyer's perspective.

The Plus Side from A Defense Lawyer's Perspective

As Mark Twain said, "there are lies, damn lies, and statistics." I've heard police and law enforcement agencies brag about the "success" of the blood draws in that when they draw blood with a search warrant -- every single result is well over the legal limit.

But here's the problem -- they're not drawing blood from everyone. When no one is coming in under the limit -- or even close for that matter -- it tells me they're only drawing blood in the cases where they think they'll get a high number. This is a clear (though probably unintentional) manipulation of the numbers.

A blanket "no refusal" weekend where the officer has no discretion EXCEPT to apply for a search warrant and draw blood may show that some people below -- perhaps well below -- the legal limit are being caught in the wide-net cast by police in the name of goodness and public safety.

Making Up the Rules as they Go Along

Texas Transportation Code Section 724.013 says in relevant part, "Except as provided by Section 724.012(b), [generally felony DWI situations such as intoxicated assault, intoxicated manslaughter, DWI with a minor, etc.] a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer."

I'm not sure what part of that rule the Police don't understand. The prosecution argues under Chapter 18 of the Texas Code of Criminal Procedure that they are entitled to apply for a search warrant for blood -- and the more general law controls over the more specific law. While Court's are supposed to give more specific laws more weight than general ones, the police and the prosecution are making their creative argument for blood draws... for the purposes of good an public safety of course.

But making up the rules as you go along is okay when its in the name of goodness and public safety. Just ask the Dallas Police.

*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 any specific case or situation you should consult an attorney directly.

How Severe is a 1st DWI?

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

A first DWI is classified in Texas as a Class B Misdemeanor. The punishment range is between 72 hours in jail and/or a fine not to exceed $2,000.

The main difference between a Driving While Intoxicated charge and any other Class B Misdemeanor (such as possession of a small amount of marijuana), is that there is tons of red tape and other administrative penalties that come along.

First is that if you've been arrested for DWI in Texas, you're probably also facing a driver's license suspension for either refusing the breath test or taking the breath test and blowing over a 0.08. The suspension is not automatic (even though law enforcement likes to think otherwise), but it's still an additional headache nonetheless. For a 1st DWI arrest, the driver should be eligible for what is known as an occupational license which allows them to drive during the suspension period for work or essential household purposes in the event the license is ultimately suspended.

Next is that if you're convicted of a DWI, then the Department of Public Safety charges you an annual surcharge for 3 years in order for you to maintain your driver's license. A generic surcharge is $1,000 per year while if your breath test is higher than a 0.15 the surcharge goes to $2,000. For a second offense the surcharge is $1,500. The surcharge program has been the source of much controversy lately but unfortunately you still have to deal with it if you're convicted.

There is no deferred adjudication for Driving While Intoxicated cases in Texas. People accused of selling drugs to kids and worse can get deferred -- but not on DWI cases.

More recently, Texas laws require Judges to order "Interlock" or "deep lung devices" on cars if the accused is convicted and had a blood alcohol concentration of greater than 0.16 while that person is on probation. The devices aren't free and the reporting requirements that come along with the devices can be fairly time-consuming and cumbersome.

Now the good news -- DWI cases are very fightable and statistics show even in Collin County that people charged with DWI have a lower conviction rate at trial than almost any other offense. Also, first-time DWI cases rarely result in jail for the accused an instead get probation even if convicted.

*Jeremy F. Rosenthal is an attorney licensed to practice in Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific case you should consult an attorney directly.

What the "Notice to Appear" You Got in the Mail Means in Your Collin County Case

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Many times when people get their "notice to appear" from the Collin County Courts, they read the document two or three times and still aren't exactly sure what it means or what-all they need to do before their appearance. Today's blawg is designed to help.

If you've been sent a "notice to appear" a month or two after an arrest, then this is your notification that the Criminal District Attorney's office has filed charges against you and that you need to come to Court on the date listed. That much is obvious.

What isn't obvious -- and what I get a lot of questions about -- is what will happen at this appearance and what, if anything, needs to be done before hand to prepare.

What an Appearance Accomplishes

First, it is the Court's way of keeping tabs of the people that are currently out on bond after a criminal arrest. Unless there are other terms and conditions of bond, you will generally satisfy the Court's requirements simply by showing up and checking in.

Court's have hundreds (if not thousands) of cases to handle at any given time. An announcement is their way of setting a time and place for you or your lawyer to talk with the State about the facts and to discuss how the case will be resolved. It usually takes multiple announcements before parties to decide how the case will be handled (usually a trial, plea, or dismissal).

Should you get a Lawyer?

Yes. Even the lowest county level offense carries a maximum penalty of 180-days confinement in the county jail. Though that is an extremely punishment on a Class B misdemeanor, it gives you an idea of just how serious the charges you are facing really are. Not having a lawyer is a great way to make a fast deal you'll sorely regret later.

Will I be Seeing the Judge?

Maybe, but your first time in Court isn't a trial setting in Collin County. If you see the judge that day it's generally your own choice if you want to enter into a guilty plea and accept a deal from the State. Otherwise, some Judges choose to admonish you directly about representing yourself (if you so choose), or by appointing an attorney to represent you if you qualify. In all likelihood, though, you probably won't be in front of a judge that day.

Should I just talk with the Prosecutor and See if I Can Make a Deal with Them?

Here are reasons why you shouldn't.

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas. Nothing in this article is designed to be legal advice. For legal advice about any specific case you should consult with an attorney directly.