Victim’s Rights

February 28, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

texasdefensefirm.com

(972) 562-7549

Victim’s rights are governed in Texas by Code of Criminal Procedure Title 1, Chapter 56 which you can read here.

In summary, most of the victim’s rights surround the right to notice of certain events such as hearings in court and the right to be heard by the Judge in certain circumstances such as sentencing.  The Texas legislature in 2009 passed new provisions allowing sexual assault victims the right to be examined by law enforcement agencies within certain time-frames of the offense alleged to have occurred.

Many victims feel as if only the criminal defendants have rights.  This impression is not entirely true, as evidenced by the statute above, but the feeling is certainly understandable.  The U.S. and Texas Constitutions are contracts between the citizens and the government.  In all criminal actions, the government is essentially suing the criminal defendant which triggers the defendant’s rights under the constitution because the government owes the defendant due process under the ‘contract.’

When a crime is committed by one person against another person, the government is not the body violating the victim’s rights which is why it is technically improper to suggest “rights” have been violated.  Obviously, a victim has been violated in a criminal situation whether it be loss of a friend or a loved one or the loss of one’s feeling of integrity and security — just not by the government.

It is always best to contact the police or a law enforcement agency if you or a loved one is the victim of a crime.  Law enforcement is far better equipped to handle a dangerous or abusive situation.  Additionally, the district attorney’s office can and does seek restitution on behalf of victims.  Every so often, I’ll have a victim contact my office.  Truthfully, as an attorney in private practice there is usually not much that our office can provide.  On occasion we may be able to pursue civil remedies such as money judgments or even injunctions to try to stop certain behavior.  The remedies we can pursue, though, are generally slower, less extensive, and are more financially costly.

*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 contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Collin County Deferred Prosecution Program Update (2/10/11)

February 10, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

I recently blogged on some of the anticipated changes to the Collin County Deferred Prosecution Program that were in the works with the new District Attorney’s administration.

One of the changes that I’ve recently learned about is that the DA’s office is not necessarily putting an age limit on who is eligible for the program.  Previously, a person over 21 would not be eligible for the deferred prosecution program.

This confirms the new administration’s willingness to be flexible and to do the right thing in each and every case.

More updates to come.

*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 on any particular situation, you should contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Should I Take the Field Sobriety Tests?

February 5, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

No.

I’ve put a lot of time and thought into the answer and here’s why I’ve ultimately come to that conclusion:  because experience tells me most of the time the officer has already made his decision to arrest you by the time he asks you to take the field sobriety tests.  So no matter how well you do, you’re not being graded by a fair judge.  You’re being graded by someone who already decided you’re going to jail.

If you’re reading this because you were arrested for DWI and you took the field sobriety tests — don’t feel bad at all about your decision.  It’s a common one and there are plenty of decent reasons to submit to them.  I just feel that in totality — the bad outweighs the good — and I’ve had a lot more time and experience with these cases than you had before you were asked to take the tests!

Most people who submit to field sobriety tests do so for two main reasons.  First, is that they don’t know they have the right to refuse.  In Texas, a person absolutely has the right to refuse.  Second, the person thinks they’ll somehow show the officer that they’re okay to drive (again, what they don’t know is changing the officer’s mind is an impossible task).

Police play into the second reason very heavily.  Remember, deception is a legitimate tool of law enforcement.  Police officers have extremely honed skills at manipulating people to comply with their requests — even though the citizen has no obligation to do so.  Field sobriety tests are a classic example.  Here’s another example — ever been asked by a police officer that just pulled you over if you know why he pulled you over?  It’s a game of “gotcha” and now you can’t fight the ticket if you answered!  When an officer asks you to take the tests to see if “you’re okay to drive,” it may sound like he’s thinking of letting you go — but odds are that it just sounds that way!  Only the officer really knows — and you have no way of knowing if he’s already called the tow truck for your car.

There are some down sides to refusing field sobriety tests too.

First is that you’re basically daring the officer to take you to jail.  Most will take you up on it.  You’re basically gambling that even if he takes you to jail that you’ll be able to beat the DWI in court by not providing any evidence knowing the State has the burden of proof.

Second is that you’re possibly making yourself the” bad guy” in front of the jury by not complying with the police.  Most jurors ask themselves whether they would take the tests or not and even though most don’t have well informed opinions, most would take the tests… but ultimately, being the “bad-guy” can be overcome.

Third is that there’s always the chance that you’ve run into a policeman that hasn’t made up their mind.  It’s probably the exception and not the rule — but it does happen.

Finally is that jurors put more stock in how you look generally on the video than how the officer testifies you did on the field sobriety tests.  If you look good taking the tests but the officer says you still failed — jurors will doubt the officer’s testimony.

*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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Grand Jury Notice Letters From the District Attorney’s Office

February 2, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

If you have gotten a a letter notifying you of a grand jury date in Collin County, Texas, it means the District Attorney’s office is attempting to indict you for a felony.  You need a lawyer immediately.

A grand jury is a body of citizens appointed by a district judge who meet regularly to review whether there is sufficient evidence to issue a true bill of indictment for a felony offense.  An accused does not have the right to be present nor present a case to the grand jury.

Though you don’t have many rights when it comes to a grand jury proceeding, you do have a lot of legal strategy to consider.

How Your Lawyer Would Deal with the Grand Jury

Often times a person accused of a crime can submit a “grand jury packet.”  A grand jury packet is an informal summation of the Defendant’s arguments for the grand jurors to review not to indict.  Most packets include an an analysis of the applicable law, the defendants side of the case, and also other mitigating factors behind the incident being investigated.

On occasion, a grand jury will allow an accused to testify in their own defense when the accused volunteers to do so.

Many times, also, it may not make sense to submit a grand jury packet.  One advantage a criminal defendant has in our system is that they don’t have to divulge their defense to the prosecutor.  Depending on the particular facts, it may be wiser to not reveal your defense until the time of trial.  Knowing when a grand jury packet will work — and when it will backfire requires thorough and detailed professional analysis by an experienced and aggressive criminal defense attorney.

It is possible to turn the grand jury situation to your advantage as a criminal defendant.  this is because the theory behind the grand jury system is that it is actually a safeguard against over-zealous prosecution.  Think of it this way — a civil lawyer needs only a good faith belief to file a lawsuit for money.  A prosecutor needs probably cause to file a misdemeanor without a grand jury review.  Because a felony charge is so serious — it does require review and indictment by a separate panel.  That panel can — and will tell the prosecutors “no” from time to time.

*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 situation you should contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

What Happens When You’re Arrested in Texas For an Out of State Warrant?

February 1, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Here’s the situation.  Your loved one is in Texas for whatever reason — business, vacation, or maybe they even moved here.  Now they’ve been arrested on a warrant from their home state.  What happens now?

This is an extradition question.  Extradition is a person’s right to compel a foreign jurisdiction to prove they have the legal right to take someone into custody.

Extradition is controlled in Texas by Code of Criminal Procedure 51.13, otherwise known as the Uniform Criminal Extradition Act (“UCEA”).  Forty-five other states participate with the UCEA which provides for standardized rules in each state.

If a person waives formal extradition, then the state seeking to extradite has a finite time period to pick-up the arrested person.  This time period can be anywhere from ten days to three weeks.  If the state doesn’t come and get them, then they are released — however the warrant is still unresolved meaning the person can simply be re-arrested at any time or any place.

If the arrested person insists on formal extradition, then the state seeking to extradite has 30 days to produce what is known as a Governor’s Warrant.  A Governor’s Warrant is a formal and detailed statement from the other state produced to the Texas Court.  If the Governor’s Warrant complies with Code of Criminal Procedure 51.13, then the person is transferred out of Texas and to the other State.  A Court can extend the time for the foreign state to produce the Governor’s Warrant an additional 60 days.  If no Governor’s Warrant is ever produced, then the foreign state cannot take custody of the accused.

A person arrested for a warrant from another State is entitled to a bond while the extradition process is ongoing.  This is a crucial point that cannot be over-looked.  In other words, the person can be released by a Texas court pending the foreign state’s attempt to get a Governor’s Warrant.

There are many reasons why formal extradition should not be waived.  Depending on the nature of the charges being faced outside Texas, it may allow an individual and his attorney valuable time to prepare a defense and it can throw an additional hurdle for prosecutors in the other State which they may not over-come.  Indeed, if they cannot produce the Governor’s Warrant in the proper time-frame, then the arrested person is simply released without prosecution (for the time being at-least).  Ideally in these situations, the person should attain local counsel in Texas as well as counsel in the state seeking to extradite.

*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 situation should consult an attorney directly.

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