Getting a Deep Lung Device Off Your Car

April 28, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

The most common complaint I get about the deep lung device (also known as an ignition interlock device) is not the hassle, not the cost, but is that is a very cruel and degrading mark of shame.

Whether it’s increased legislative requirements or increased pressure from mothers against drunk driving, these devices are becoming more and more popular with judges.

If you’re reading this, chances are you want to know how to get the thing OFF your car with the Judge’ permission.

The first question is whether the Judge has discretion to order the device removed.  Discretion is just a legal term meaning that the law allows the Judge to decide one way or the other.  For example, in a situation where it is a second DWI arrest, the accused must legally have the deep lung device installed on the car pursuant to Tex.Code.Crim.P. 17.441.  But, under Texas.Code.Crim.P. 42.12 Section 13(i), the Judge may allow a probationer to have the interlock device removed after 50% of the probation is complete.

If the judge has the legal discretion to remove the device, the next step is to convince him or her that this is appropriate in your case.  Here’s the key in Texas — private companies monitor the ignition interlock devices and they keep a detailed log of whether there have been any violations or if the car is under-utilized which indicates the driver may be driving another vehicle and avoiding blowing into the apparatus.  Virtually any judge that I know would ask to see the records from the log.  This means that to have a good chance of getting the deep lung device off your car — you have to have as clean a record as possible.  Also keep in mind that probation officers and the personnel that monitor these devices are highly cynical.  Some will take any failure – regardless of the cause – as proof that the driver has been drinking.

Even with a clean record, it’s no guarantee that your judge will allow the apparatus to be removed, but you’re not giving yourself a chance to get rid of the humiliating device with a dicey record.

You should consult with your attorney as to when it is appropriate to ask the Judge to have a deep lung device removed from a car.

*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 about any specific situation, you should contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Dealing with a Probation Officer

April 19, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Probation officers have a hard job.  They deal with many difficult people going through difficult times in their lives.  Probation officers can be your ally or they can be your enemy.

I’m frequently asked by clients and potential clients about how to handle certain situations with a probation officer.  Sometimes it may be appropriate to involve your lawyer but sometimes that can backfire unintentionally.

Probation officers are people too.  Like most people – they don’t react well to being challenged by a probationer or by a lawyer.  Some probation officers will retaliate harshly when their actions are called into question.  In Texas, the probation officers technically work for the judges… but judges want to stay out of the day-to-day monitoring of probationers.  If it seems as if it is a situation where the judge will not be interested — or if it’s an area where the judge and prosecutor will traditionally back up the probation officer, the better course of action may be to tough-it-out with the bad situation.

This doesn’t mean you should subject yourself to an abusive probation officer, however.  You should contact an attorney if you feel like the terms and conditions of your probation need to be modified to avoid an abusive situation.  Also remember that your right to remain silent isn’t checked-in at the door.  In Texas, you do not have to incriminate yourself with regards to other offenses or violations the probation officer may want to question you about.

Sometimes the probation officer can be a valuable ally.  Once in a while, a prosecutor will attempt an aggressive approach to a revocation or adjudication proceeding and the probation officer — who knows the accused far better may disagree.  Having the probation officer on your side can convince the prosecutor to take a different approach or even help convince the judge that the prosecutor is wrong in their assessment.

It goes without saying, but always do your best on probation and always do your best to get along with your probation officer.  They are people too with the same pressures and shortcomings we all have.

*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 contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Collin County Pre-Trial Diversion Update (April 18, 2011)

April 18, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The Collin County Pre-Trial Diversion program (formerly known as deferred prosecution program) is beginning to take shape.  This is the program which allows many people who have never had a run-in with the law a chance to fully clear their record without the risks associated with trial.

Prior to 2011, to be eligible for “deferred prosecution,” someone needed to be between the ages of 17 and 21, be accused of a non-violent offense, never have been in trouble before, and a resident of Collin County to qualify for the program.  The former administration (under District Attorney John R. Roach) would not accept applications but would review incoming cases for those they deemed as qualifying.  Those people would get an unsigned letter on the DA’s letter head directing them to call a particular probation officer.  If you didn’t answer on time or if for some reason you never got a letter — you were out of luck.  Finally, if you did successfully complete the program (and that was a bigger “if” than it should have been), you would have to wait 2 years to apply for an expunction, which the DA’s office could technically oppose if they wanted.

Here’s how it works with the new Greg Willis administration — after the arrest, the filing agency (usually the police department that made the arrest) files their case with the DA’s office.  The DA’s office in turn files misdemeanor cases with the trial court or if the case is a felony with the grand jury.

Once the case has been assigned to a trial court, the defendant’s attorney can request the case be considered for the pre-trial diversion from the prosecutor.  If the trial court prosecutor approves, they send it through several channels within the DA’s Office.  If those get approved as well, the accused is invited to meet with the probation officer to enter the program.

Prosecutors are given general guidelines for the Pre-Trial Diversion.  While the program is still not open to DWI or domestic violence cases, felony offenses are now available for the program.  Prosecutors have been instructed to scrutinize cases where there may be impaired driving that falls short of driving while intoxicated — which may include drug arrests in cars.

The trial-courts have agreed, in principal, to cooperate with the Pre-Trial Diversion program.  There are still likely details with the Courts that must be worked out with how these cases are accounted for or monitored.

Finally, the best benefit of all to the Pre-Trial Diversion program is that for the first time, the DA’s office promises the accused in writing that if they successfully complete the program, they agree to dismiss the case and never refile it.  This bar to prosecution makes expunging the arrest more clear and immediate.

Again, the diversion program is still a work in progress. If there are more updates with the program, you can read about it here.

*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 particular situation, you should contact an attorney directly.

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Can a Failed Drug Test Result in a Probation Revocation?

April 9, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The short answer is yes.  But as with all things in our court system, it’s not certain.

Here’s how a revocation works — if you do something (or don’t do something) which is a violation of your probation or deferred adjudication, then usually a probation officer will make the decision to recommend revocation to the prosecuting attorney.  If the prosecuting attorney agrees with the probation officer (and virtually all will), then a motion to revoke probation is filed, and usually a warrant is issued.  After the accused is brought back to court, the revocation is heard.  (FYI, you’re entitled to a bond on misdemeanor revocations but for felony revocations you are not entitled to a bond in Texas.  You’re only entitled to a bond for felony revocations if you were on deferred adjudication).

Technically, a probation officer in Texas works for the Judge, but they don’t carry the power of the judge.  If they want to take any action against you — they cannot do so on their own.  In order for a probation officer to formally change the terms and conditions of your probation, they must either do so with your agreement (admittedly sometimes after bullying probationers with “or else” threats), or they must go through the prosecutor.

A failed drug test is a common example of a probation violation that results in revocation (or adjudication if the person is on deferred).  Probation officers consider many things, however, before deciding to revoke.  They are people too and they’ll hopefully consider your history, your past cooperativeness or progress, or your sincerity in admitting making a mistake if that’s the case.  In some counties, probation officers may have a bigger or smaller case load — and unfair as it may be, that can also impact their decision.

If you have questions about how a probation officer is treating you or if you’re not sure about legal representations they make to you — it is not inappropriate at all to involve a lawyer.  Also remember that you have the right to remain silent even with a probation officer about violations they may allege.

*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 particular matter you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Cleaning Up Your Criminal Record 101

April 9, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

There are several steps I take when trying to help someone clean-up their criminal record.

The first and most important question is what are we dealing with?  Your lawyer needs to know (1) the charges brought against you and (2) what the outcome of those charges.

This is where the analysis gets a bit tricky.

Virtually any Texas case that resulted in a final conviction will be very difficult to work with.  There are always remote possibilities of continuing appeals or perhaps even a pardon, but those are another topic for another day.  Really, if your previous case resulted in a final conviction — regardless of classification, there simply aren’t many ways to mitigate your record that isn’t a long-shot.

Many cases where someone has successfully completed deferred adjudication for a class b misdemeanor or above may result in what is known as a non-disclosure.  A non-disclosure, in a nutshell, is a sealing of your criminal record so that only law enforcement and governmental entities are privy to your record.  Non-disclosures are discretionary which means that it is up to the Judge to say yes or no.  Also, a person is not eligible for a non-disclosure for 2 years after they are off of deferred in a misdemeanor, or 5 years for a felony.  Additionally, the legislature has cherry-picked certain offenses as not being eligible for non-diclsosures even where deferred is successfully completed.  The best example is where the court enters an affirmative finding of family violence.

And then there are expunctions which, frankly, is the goal in every criminal case.  An expunction under Texas Code of Criminal Procedure Chapter 55 is a complete destruction of your arrest record.  You can read about expunctions in the link I provided, but generally speaking, an expunction is typically available when the State is legally barred from prosecuting you for whatever reason.  The main reason is generally an acquittal (which creates a double-jeopardy bar).  Also, as you can see in the statute, most class c misdemeanors allow for expunctions upon successfully completing deferred adjudication and the Statute of limitation expiring.

*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 consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.