Getting Criminal Charges Dismissed

September 12, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.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 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 specific legal advice about any situation you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Getting Letters Threatening to Sue You for Shoplifting?

September 6, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.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 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 any legal advice about any specific situation you should directly consult an attorney licensed in your state.

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Posted by Jeremy Rosenthal, Esq.

Possession of Cocaine

September 6, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972)562-7549

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

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Posted by Jeremy Rosenthal, Esq.

Dallas Police Announce “No Refusal” Labor Day Weekend, 2010

September 4, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.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 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 specific legal advice about any specific case or situation you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

How Severe is a 1st DWI?

September 2, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.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 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 about any specific case you should consult an attorney directly.

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