The Difference Between DUI and DWI in Texas

March 22, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

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.

DUI – Minors

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.

DWI – Both Adults and Minors

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 Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice, you should consult an attorney.

1 Comment | Uncategorized | Tagged: , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Police Interviews — Questions and Answers

March 19, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

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.

Always consult a lawyer if police want to question you.

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 Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice, you should consult an attorney.

1 Comment | Civil Liberties, Homicide, Murder, Uncategorized | Tagged: , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Why a Theft Charge is Bad News

March 17, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Theft is regarded in Texas as a “crime of moral turpitude” unlike driving while intoxicated or drug possession.

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.

Theft is beatable in court. There are also ways of getting the theft charge off your record through probation programs by agreement.

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 Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice, you should consult an attorney.

1 Comment | Uncategorized | Tagged: , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Dallas Police Want to Do Blood Warrants for All DWI Arrests

March 16, 2010

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 Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice, you should consult an attorney.

Leave a Comment » | Uncategorized | Tagged: , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Petition for Non-Disclosure

March 15, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

A Petition for Non-Disclosure is an intermediate tool used to clean someone’s record.  It essentially hides your record from the public.  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 code was recently amended to allow for immediate non-disclosure of most misdemeanor offenses after successfully being discharged from deferred adjudication.

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 Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice you should always consult an attorney.

1 Comment | Collateral Consequences of a Criminal Record, Expunction & Non-Disclosure, Uncategorized | Tagged: , , , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

« Previous Entries
Next Entries »